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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Minority Business & Housing )
Development, Inc. File No. EB-06-NY-275
Licensee of Station WYGG NAL/Acct. No. 200832380002
Asbury Park, New Jersey FRN: 0007512528
Facility ID # 19867
Adopted: May 28, 2009 Released: June 3, 2009
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty-five thousand dollars ($25,000) to Minority
Business & Housing Development, Inc. ("MBHD"), licensee of FM radio
station WYGG in Asbury Park, New Jersey, for willfully and repeatedly
violating Section 1.1310 of the Commission's Rules ("Rules), by
failing to comply with radio frequency radiation ("RFR") maximum
permissible exposure ("MPE") limits applicable to facilities,
operations, or transmitters; Section 73.1350(a) of the Rules, by
operating with an excessive antenna height from an unauthorized
location; and Section 73.3527(a) of the Rules, by failing to maintain
a public inspection file.
2. On November 16, 2006, an agent from the Commission's New York Office
monitored station WYGG on 88.1 MHz using an FCC direction finding
vehicle and found that the station was operating from an antenna
mounted on the roof of 601 Bangs Avenue, Asbury Park, New Jersey
07712, at coordinates 40DEG 13' 01'' north latitude and 074DEG 00'
36'' west longitude, approximately 83 meters west of the station's
authorized location. The antenna was mounted at a height of 43.9
meters AGL, which exceeded its authorized antenna height by 29.9
3. After identifying the station's location, the agent then entered the
building located at 601 Bangs Avenue and identified himself to the
front desk clerk. The clerk indicated that he had a key to the roof
and contacted the building manager, who escorted the agent to the
roof. To access the roof, it was necessary to unlock a padlocked door
that led into a poorly illuminated elevator equipment room, which was
followed by an unlocked door leading outside to the lower level of the
roof. The roof had an upper level, which could only be accessed by
climbing a ladder mounted on the side wall. The agent observed WYGG's
transmitting antenna approximately 8 feet above the upper roof level
mounted on a pole approximately 3 feet away from the top of the
ladder. The agent also observed a set of cellular antennas mounted on
the side wall around the edges of the upper roof, and a set of 8 thick
cables laid across the upper roof within several feet of WYGG's
antenna. Using a personal RF safety monitor, the agent determined that
there was an area near the top of the ladder leading to the upper roof
that met or exceeded the general population RFR MPE limits. There were
no warning signs or barriers on the rooftop to prevent access to the
area in question. In response to questions, the building manager
stated that workers routinely gain access to the roof by obtaining a
key from the front desk or the office on the 11th floor and that
workers recently accessed the roof to work on the cellular equipment.
She also stated that she was unaware of any RFR hazards on the roof.
4. Immediately after the rooftop inspection on November 16th, the agent
inspected WYGG's main studio, located on the 7th floor of the
building. During the inspection, the agent observed that there was no
public file, no chief operator designation, no station license posted,
and very few station logs. The agent observed in the station's records
a 2-year lease agreement which commenced on April 1, 2005, between the
building owner and WYGG's station manager, for the lease of 601 Bangs
Avenue, Suite 705. The lease also specified the installation of one
antenna on the roof. The agent advised the station manager that MBHD
was in violation of the FCC's Rules for operating from an unauthorized
location and height, for excessive levels of RFR on the rooftop, for
not having a public file, and detailed other violations found. The
agent informed the station manager that these were many of the same
violations for which MBHD received an NOV and forfeiture in 2002. The
station manager admitted that the station did not have a public
inspection file, that there was no designated chief operator, and that
their contract engineer, who comes by occasionally, is the only one
who knows anything about the transmission system or knows how to
operate the EAS equipment. The manager stated that he was not aware of
the RFR issue and he made no mention of any signs posted or procedures
to follow regarding RFR.
5. On November 20, 2006, agents from the Commission's New York and
Philadelphia Offices conducted a RFR survey of radio station WYGG on
the rooftop of 601 Bangs Avenue, Asbury Park, New Jersey. Agents
contacted building management, who instructed the agents to obtain the
key for the padlocked door from the office on the 11th floor. After
opening the padlocked door that led into the elevator equipment room,
the agents observed two small, inconspicuous signs near the unlocked
door that led to the rooftop. One was a small RFR sign posted to the
left of the door by a wireless service provider indicating that the
RFR levels may exceed FCC Standards for general public exposure. The
sign did not indicate which areas on the roof exceeded the public or
general population limits. The second was a small white paper sign
glued to the right of the access door advising of a "radio frequency
hazard" and that "anyone who has to climb the ladder to the top out of
this door please contact the radio station on 7th floor suite 705."
Two phone numbers for the station were listed on the sign. Neither
warning sign was clearly visible because the elevator equipment room
was not illuminated. The view of the small white sign to the right of
the access door was blocked by a large piece of electrical equipment.
6. The agents then proceeded to the upper rooftop to conduct RFR
measurements. There were still no warning signs or barriers on the
rooftop to prevent access to hazardous areas. Using a calibrated RFR
meter, the agents determined that the occupational and general
population limits were exceeded in an area about 5 feet around WYGG's
antenna support pole. The agents made a total of 12 spatially averaged
measurements one foot from WYGG's antenna support pole at a single
location where the highest RFR levels were detected. The measurements
showed that the RFR level was 158% of RFR MPE occupational limit, and
790% of the general population RFR MPE limit, or 1.58 mW/cm2
7. Immediately after making the RFR measurements, an agent contacted the
station manager at one of the numbers listed on the warning sign. The
agent stated to the station manager that workers were about to go on
the roof and asked the manager if there were any hazards for persons
working on the upper level roof. The manager indicated that there were
no hazards on the roof but that the workers should not go too close to
the antenna. The agent repeatedly informed the manager that men would
be working near the antenna on the upper roof and asked if there would
be a problem. The manager stated that the antenna has been up there
for 5 or 6 years and that people had worked on the roof before and
nothing happened. The agent called the manager back about 10 minutes
later, explained that he was still concerned about RFR from the
antenna, and asked if it would be possible to temporarily turn off the
power to the station so that the men could work safely on the roof.
The manager said that he would ask the station operators to turn off
the station. A few minutes later, the manager called the agent back
and said he was going to the station himself to turn off the station.
Shortly thereafter, the manager called the agent again, stating that
he was at the studio and was turning off the station for 30 minutes.
The agent asked the manager if it would be safe for the men to go to
the upper roof, and the manager said that it would. The agents then
observed that the radio transmitter for station WYGG was still
8. Several minutes later, the station manager came to the rooftop. When
agents asked why the power to the station was not turned off after he
agreed to do so, the manager explained that he thought that turning
off the audio to the radio station was sufficient. The agents
explained that the transmitter itself must be turned off in order to
eliminate the RFR emanating from the antenna. After the WYGG
transmitter was turned off, the agents conducted additional RFR
measurements in the same location under WYGG's antenna with the
calibrated RFR meter. No RFR emissions were detected when station WYGG
was off the air, which indicated that WYGG was responsible for 100% of
the emissions measured earlier. Therefore, the RFR emissions from WYGG
were 158% of RFR MPE occupational limit, and 790% of the general
population RFR MPE limit, or 1.58 mW/cm2. The agents explained to the
manager that the RFR levels due to WYGG's transmission exceeded the
occupational and general population MPE limits, creating an RFR
hazard, and that the problem should be addressed as soon as possible.
The agents also advised the manager that, in addition to the RFR
violations, the station was still in violation for operating at an
unauthorized location and height.
9. On November 21, 2006, an agent from the New York Office called the
licensee, MBHD, and spoke to MBHD's Executive Director, Dr. Philius
Nicholas. The agent explained all the violations found and noted that
these were some of the same violations cited in the NOVs and NAL
issued in 2002. Dr. Nicholas stated that he previously submitted an
application to move WYGG to 601 Bangs Avenue, at an increased height
and lower power. The agent explained that WYGG was never authorized to
operate from that location and height and FCC records show that the
construction permit application (File No. BPED-20020808ADH) was never
granted and was in fact dismissed per the applicant's request.
10. On January 30, 2007, agents conducted an inspection of WYGG at its new
facility, which it was operating from pursuant to a Special Temporary
Authority ("STA") granted by the Audio Service Division on January 4,
2007. The agents determined that the station was operating at the
location, antenna height, and power authorized by the STA. The STA
letter and chief operator designation were posted at the studio, and
there were labeled folders in the public file for all required
elements, but the file was incomplete. Specifically, there were no
quarterly issues/programs listings in the file. The transmitting
antenna was located on the roof of a building next door to 414 Asbury
Avenue, mounted on a pole approximately 20 feet above the roof at the
south west corner of the building. The agents used a calibrated RFR
meter to determine if any areas on the roof exceeded the public or
occupational RFR MPE limits. The agents conducted several sets of
spatial average measurements under the WYGG antenna, and determined
that the levels were in compliance with the occupational and general
population RFR MPE limits.
11. On December 20, 2007, the New York Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $25,000 for the
violations found at 601 Bangs Avenue. Specifically, the New York
Office found that MBHD apparently willfully and repeatedly violating
Section 1.1310 of the Rules by failing to comply with the RFR maximum
permissible exposure MPE limits; Section 73.1350(a) of the Rules by
operating with an excessive antenna height from an unauthorized
location; and Section 73.3527(a) of the Rules, by failing to maintain
a public inspection file. In its response to the NAL, MBHD seeks a
"significant reduction" in the proposed forfeiture on the ground that
it did not intentionally commit the violations and that it has made
significant efforts to come into compliance with the Commission's
Rules. In addition, MBHD submits a Declaration from the WYGG
consulting engineer that addresses each of the findings in the NAL.
12. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining MBHD's response, Section 503(b) of
the Act requires that the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
A. Compliance with RFR Limits
13. We disagree with MBHD's assertion that it did not violate the
Commission's RFR limits. MBHD does not dispute the agents'
measurements, which showed that the area near the WYGG antenna
exceeded the general population/uncontrolled RFR MPE limits. Rather,
MBHD claims that the general population/uncontrolled RFR MPE limits do
not apply here because the general population did not have access to
the roof. In support of its claim, MBHD's engineer submits that he
personally was not able to access the roof and therefore, he argues,
the general public could not possibly gain access. The fact that the
station's consulting engineer personally did not know how to access
the antenna is irrelevant. As we explained in the NAL, the general
population/uncontrolled RFR MPR limits applied in this case because
the roof where WYGG's antenna was located was accessible by workers
who were not aware of their potential for exposure and could not
exercise control over it. That is, we found in the NAL that there was
an "uncontrolled" environment on the roof, not that the general
population had access to the roof.
14. Our finding that the general population/uncontrolled RFR MPR limits
applied was based on several pieces of evidence in the record. First,
the building manager and station manager admitted to the agents that
they were not aware of the RFR hazard. Second, the building manager
and station manager reported that workers routinely accessed the roof.
Third, although warning signs were posted inside near the roof access
door, these signs were inconspicuous due to poor illumination and a
large piece of electrical equipment blocked the view of one of the
signs. Fourth, the areas on the rooftop that exceeded the general
population RFR MPE limit were not marked in any way. Because MBHD has
not submitted any evidence demonstrating that the workers who accessed
the roof were aware of the RFR hazards and could exercise control over
their exposure, we conclude that we appropriately applied the general
population/uncontrolled RFR MPE limits in this case. The agents found
that the RFR emissions greatly exceeded the general population MPE on
November 16 and 20, 2006, and we therefore conclude that MBHD
willfully and repeatedly violated Section 1.1310 of the Rules by
failing to comply with the RFR MPE limits applicable to facilities,
operations, and transmitters.
A. Station Location and Antenna Height
15. We reject MBHD's contention that it was operating from 601 Bangs
Avenue, Asbury Park, New Jersey, pursuant to a valid license. At the
time of the inspections in 2006, the station's license (File No.
BLED-19940304KZ) authorized WYGG to operate at 517 Cookman Avenue,
with an antenna height of 14 meters above ground level ("AGL") and
height above average terrain ("HAAT") of 10 meters at the coordinates
40DEG 13' 01'' north latitude and 074DEG 00' 33'' west longitude. As
detailed in the NAL, on November 16 and 20, 2006, agents found that
WYGG was operating from an antenna mounted on the roof of 601 Bangs
Avenue at a height of 43.9 meters AGL and a HAAT of approximately 40
meters at coordinates 40DEG 13' 01'' north latitude and 074DEG 00'
36'' west longitude. The "license" that MBHD's engineer refers to in
support of his claim that WYGG was operating pursuant to a valid
license (BPED-19980417ID) was a three-year construction permit that
expired on May 18, 2002. MBHD has not submitted any other
documentation in support of its claim that it had authority to operate
from 601 Bangs Avenue. We therefore find that, by operating with an
excessive antenna height from an unauthorized location, MBHD willfully
and repeatedly violated Section 73.1350(a) of the Rules, which
requires that a licensee operate in accordance with the terms of its
A. Public Inspection File
16. We find no basis for cancelling the forfeiture proposed for failure to
comply with the Commission's public inspection file rules. On November
16, 2006, an agent inspected WYGG's main studio and found that the
station did not maintain a public inspection file. During the
inspection, the station manager admitted that the station did not have
a public inspection file. In his Declaration, MBHD's consulting
engineer claims that he kept the public file in his desk drawer and
that station management did not know where he kept the file. Even
assuming that a complete file was in the engineer's desk drawer, the
mere fact that a file exists does not constitute compliance with
Section 73.3527(c) of the Rules, which requires that the public file
"shall be available for public inspection at any time during regular
business hours." Therefore, at a minimum, MBHD willfully failed to
make its public inspection file available to the agent on November 16,
2006, as required by Section 73.3527(c) of the Rules. We ultimately
find, however, that the engineer's statement, which is made without
any supporting documentation and which is in direct contradiction to
the statement of the station manager, is totally without merit.
Accordingly, we conclude that MBHD willfully and repeatedly violated
Section 73.3527(a) of the Commission's Rules by failing to maintain a
public inspection file.
A. Forfeiture Amount
17. We find that MBHD's request for a "significant reduction" in the
forfeiture amount is without merit. First, we decline to reduce the
forfeiture amount based on MBHD's claim that it did not intend to
violate the rules. To assess a forfeiture penalty, Section 503(b)(1)
of the Act requires that we determine that the subject "willfully or
repeatedly" violated the rules. The Commission has long held that
violations resulting from inadvertent error or failure to become
familiar with the FCC's requirements are willful violations and that
"willful" does not require a finding that the rule violation was
intentional. Rather, the term "willful" means that the violator knew
that it was taking (or not taking) the action in question,
irrespective of any intent to violate the rules. In any event, because
we find here that MBHD's violations of Section 1.1310, Section
73.1350(a), and Section 73.3527(a) were repeated, we do not also need
to make a determination that they were willful. We likewise decline to
take into consideration the "ongoing efforts that WYGG has made to
become FCC compliant." The Commission has consistently held that a
licensee is expected to correct errors when they are brought to the
licensee's attention and that such correction is not grounds for a
downward adjustment in the forfeiture.
18. In sum, we have examined MBHD's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that MBHD willfully
and repeatedly violated Section 1.1310, Section 73.1350(a), and
Section 73.3527(a) of the Rules and that the $25,000 forfeiture
proposed in the NAL is warranted.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Minority Business & Housing
Development, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for violations of Section
1.1310, Section 73.1350(a), and Section 73.3527(a) of the Rules.
20. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Minority Business & Housing Development,
Inc. shall also send electronic notification on the date said payment
is made to NER-Response@fcc.gov.
21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Minority Business
& Housing Development, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Mofffitt
Regional Director, Northeast Region
47 C.F.R. S: 1.1310. See also Guidelines for Evaluating the Environmental
Effects of Radiofrequency Radiation, Report and Order, ET Docket No.
93-62, 11 FCC Rcd 15123 (1996), recon. granted in part, First Memorandum
Opinion and Order, 11 FCC Rcd 17512 (1996), recon. granted in part, Second
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd
13494 (1997) ("Guidelines").
47 C.F.R. S: 73.1350(a).
47 C.F.R. S: 73.3527(a).
The Philadelphia Office previously issued a NAL to MBHD on December 30,
2002, in the amount of $13,000 for unauthorized antenna height and no EAS
equipment installed. See Minority Business & Housing Development, Inc.,
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332400003
(rel. December 30. 2002). MBHD did not dispute the violations and after
issuance of a Forfeiture Order and Memorandum Opinion and Order, MBHD paid
the forfeiture on November 17, 2004. See Minority Business & Housing
Development, Inc., Forfeiture Order, 18 FCC Rcd 9422 (2003), Memorandum
Opinion and Order, 19 FCC Rcd 8929 (2004). Prior to issuance of the NAL,
Notices of Violation ("NOV") were issued by the FCC's Philadelphia Office
on May 30, 2002 and July 24, 2002, citing MBHD for unauthorized antenna
height and location, unauthorized antenna type, no public file, no EAS
equipment installed, no station logs, and no chief operator designation or
review. The July 24, 2002 NOV also cited MBHD for failure to respond to
the first NOV.
During the 2002 investigation, building management for 601 Bangs Avenue
stated that, based on engineering drawings, the WYGG antenna was mounted
on the roof of the building 144 feet (43.9 meters) above ground level,
which exceeds its authorized antenna height by 29.9 meters.
See File No. BSTA-20070104ACJ. On April 3, 2007, MBHD submitted an
application for an extension of the STA, File No. BESTA-20070403ACK, and
an application for Construction Permit, File No. BPED-20070403ABV, to
operate station WYGG from the new facility at 414 Asbury Avenue. On July
23, 2007, the Audio Division granted MBHD a 36-month Construction Permit.
As of the release date of this order, MBHD continues to operate WYGG at
414 Asbury Avenue pursuant to an STA.
Declaration of Neal Newman, dated January 29, 2008.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
MBHD's engineer states in his Declaration that "I submit that the FCC
inspector was able to gain access because he was a federal agent." See
Declaration at 4. Our finding that the general population/uncontrolled RFR
MPE limits apply is not based on the fact that the FCC agent was able to
access the roof. Our finding is based on the fact that the building
manager and station manager reported that workers routinely accessed the
roof and that workers were not properly warned about the RFR hazards.
See NAL at para. 16. In situations where the general public may be
exposed, or where persons that are exposed as a consequence of their
employment may not be fully aware of the potential for exposure or cannot
exercise control over their exposure, the general population/ uncontrolled
MPE limits apply. See 47 C.F.R. S: 1.1310, Note 2 to Table 1.
Our finding here is consistent with the Commission's recent decision in
Infinity Broadcasting Corporation of Florida in which the Commission
affirmed the assessment of a forfeiture for violation of the RFR MPE
limits and found, inter alia, that it was appropriate to apply the public
MPE limits where access to the area of concern was restricted, but no
visible signage or markings existed to make workers and employees entering
the area of concern even aware of their exposure, let alone enable such
workers or employees to exercise control over their exposure to high RFR
fields in the area of concern. Infinity Broadcasting Corporation of
Florida, Order on Review, 47 P&F 754 (April 7, 2009) para. 19.
Although our findings here with regard to violations of the RFR MPE limits
are not based on the fact that the station manager did not know how to
turn off the transmitter, we note that his inability to do so is relevant
to whether MBHD is able to comply with the requirement in its station
license that it be able to "reduce power or cease operation as necessary
to protect persons having access to the site, tower or antenna from
radiofrequency electromagnetic fields in excess of FCC guideline." It is
particularly troubling that the station manager is unable to turn off the
transmitter given that MBHD's consulting engineer, who claims that he is
the only one who knows how to operate the transmitter, also reports that
he has a full-time job maintaining eight major market stations. See
Declaration at 4.
Although MBHD's engineer claims that license BLED-1994030KZ expired in
1998, the license was in fact renewed in 2000 (File No. BRED-19980420YA)
and again in 2006 (File No. BRED-20060125AGT).
MBHD does not dispute that it was operating with its antenna at an
unauthorized height. We note that a $5,000 forfeiture was proposed in the
NAL for operating with an unauthorized antenna and at an unauthorized
location. Under Section 1.80 of the Rules, 47 C.F.R. S: 1.80, the base
forfeiture amount for exceeding an authorized antenna height is $5,000.
Therefore, even if we accepted MBHD's claim that it was operating from an
authorized location, there would not be any reduction in the forfeiture
We do not address here whether WYGG was properly maintaining its public
inspection file during the agents' inspection on January 30, 2007, because
our findings with regard to the station's public inspection file at 601
Bangs Avenue alone warrant the proposed $10,000 forfeiture.
Declaration at 1.
See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7
FCC Rcd 2088 (1992) (" PJB Communications"); see Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387
(1991), recon. denied, 7 FCC Rcd 3454 (1992) (" Southern California")
(stating that "inadvertence ... is at best, ignorance of the law, which
the Commission does not consider a mitigating circumstance"); Standard
Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986)
(stating that "employee acts or omissions, such as clerical errors in
failing to file required forms, do not excuse violations").
See e.g., ESI Companies, Inc., Forfeiture Order, 19 FCC Rcd 17744 (2004),
citing KOKE, Inc., 23 FCC 2d 191 (1970).
See AT&T Wireless Services, Inc, 17 FCC Rcd 21866, 21875-76 (2002);
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.1310,
Federal Communications Commission DA 09-1208
Federal Communications Commission DA 09-1208