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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AMFM Radio Licenses, L.L.C. ) File No. EB-02-DV-439
Licensee of FM Radio Station KBIG-FM ) NAL/Acct. No.
200432100001
Los Angeles, California ) FRN 0001656586
Facility ID # 6360 )
)
Radio One Licenses, LLC ) NAL/Acct. No.
200432100002
Licensee of FM Radio Station KKBT ) FRN 0006541486
Los Angeles, California )
Facility ID # 70038 )
)
Infinity Broadcasting Operations, Inc. ) NAL/Acct. No.
200432100003
Licensee of FM Radio Station KRTH-FM ) FRN 0003476074
Los Angeles, California )
Facility ID # 28631 )
)
Telemundo of Los Angeles License Corporation ) NAL/Acct. No.
200432100004
Licensee of TV Station KWHY-TV ) FRN 0004294179
Los Angeles, California )
Facility ID # 26231 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 20, 2003 Released: October
22, 2003
By the Commission:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that the captioned licensees of broadcast
stations operating from the Mt. Wilson transmitter site in Los
Angeles, California, apparently willfully and repeatedly violated
Section 1.1310 of the Commission's Rules (``Rules'')1 by failing
to comply with radio frequency radiation (``RFR'') maximum
permissible exposure limits applicable to facilities, operations,
or transmitters. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (``Act''),2 that AMFM
Radio Licenses, L.L.C. (``AMFM''), licensee of FM radio station
KBIG-FM, Radio One Licenses, LLC (``Radio One''), licensee of FM
radio station KKBT, Infinity Broadcasting Operations, Inc.
(``Infinity''), licensee of FM radio station KRTH-FM, and
Telemundo of Los Angeles License Corporation (``Telemundo''),
licensee of TV station KWHY-TV, all serving Los Angeles,
California, are each apparently liable for a separate forfeiture
in the amount of ten thousand dollars ($10,000).
II. Background
2. The RFR Rules. In 1996, the Commission amended its
rules to adopt new guidelines and procedures for evaluating the
environmental effects of RFR from FCC regulated transmitters.3
The Commission adopted maximum permissible exposure (``MPE'')
limits for electric and magnetic field strength and power density
for transmitters operating on towers at frequencies from 300 kHz
to 100 GHz.4 These MPE limits, which are set forth in Section
1.1310 of the Rules, include limits for
``occupational/controlled'' exposure and limits for ``general
population/uncontrolled'' exposure. The occupational exposure
limits apply in situations in which persons are exposed as a
consequence of their employment provided those persons are fully
aware of the potential for exposure and can exercise control over
their exposure.5 The limits of occupational exposure also apply
in situations where an individual is transient through a location
where the occupational limits apply, provided that he or she is
made aware of the potential for exposure. The more stringent
general population or public exposure limits apply in situations
in which the general public may be exposed, or in which 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.6 Licensees can demonstrate
compliance by restricting public access to areas where RFR
exceeds the public MPE limits.7
3. The MPE limits specified in Table 1 of Section 1.1310
are used to evaluate the environmental impact of human exposure
to RFR and apply to ``...all facilities, operations and
transmitters regulated by the Commission.''8 Further, the FCC's
rules require that if the MPE limits are exceeded in an
accessible area due to the emissions of multiple transmitters,
that actions necessary to bring the area into compliance ``are
the shared responsibility of all licensees whose transmitters
produce, at the area in question, power density levels that
exceed 5% of the power density exposure limit applicable to their
particular transmitter.''9 The 5% threshold applies to the power
density limit or to the square of electric or magnetic field
strength limit.10 If the MPE limits are exceeded at an
accessible area, all stations that produce a power density level
exceeding 5% of the power density exposure limit applicable to
its particular transmitter at that accessible area share
responsibility to correct the problem.11
4. Broadcast stations that filed applications after
October 15, 1997, for an initial construction permit, license,
renewal or modification of an existing license were required to
demonstrate compliance with the new RFR MPE limits, or to file an
Environmental Assessment and undergo environmental review by
Commission staff.12 In addition, all existing licensees,
including all licensees at multiple transmitter sites, were
required to come into compliance with the new RFR MPE limits by
September 1, 2000, or to file an Environmental Assessment.13
5. The Mt. Wilson Inspection. On July 11 and 12, 2002,
agents from the FCC's Enforcement Bureau field offices conducted
an inspection of the Mt. Wilson telecommunications and antenna
farm site located northeast of downtown Los Angeles, California,
off Highway 2, on Mt. Wilson (5710 ft.) in the San Gabriel
Mountains. The main antenna farm, encircled by Video Road, is
not fully fenced or gated. Agents were able to access the site
without encountering protective fencing or warning signs on July
11, 2002 on three sides of the area and on two sides of the area
on July 12, 2002. Nestled within the broadcast towers on Video
Road is the Mt. Wilson United States Post Office (91023), which
serves the Mt. Wilson area. Approximately 330 yards southeast
from the United States Post Office is the entrance to the Mt.
Wilson Observatory and Park, which receives thousands of visitors
a year.
6. The agents identified a 10 ft. by 100 ft. area on a
driveway into the main antenna farm located off Video Road on
July 11, 2002, that exceeded the FCC's public MPE limits at
ground level. The identified area on the driveway was only
approximately 100 feet from the United States Post Office,
accessible to the general public and not marked with any RFR
warning signs. On July 11, 2002, agents made power density
measurements throughout the identified area on the driveway that
ranged from 152.5% to 197.5% of the public RFR MPE limit. Thus,
conservatively, the RFR fields exceeded the MPE limits for the
general population by 50%.
7. After identifying and marking the area on the driveway
exceeding the RFR MPE public limits, the agents observed a broken
chain on the ground to one side of the entrance to the driveway,
on top of a weathered and damaged ``No Trespassing'' sign. Just
prior to the time the agents departed that area of the Mt. Wilson
antenna farm on July 11, an engineer from one of the stations at
the site repaired the chain, strung it across the driveway, and
placed a RFR warning sign on the chain. Several broadcast
station engineers familiar with the site admitted to FCC agents
that the chain had not been attached for several days prior to
the inspection on July 11 and most likely had been taken down by
contractors working for licensees at the site.
8. On July 12, 2002, FCC agents with the cooperation of
all the broadcasters at the Mt. Wilson antenna farm, conducted
additional measurements at the area marked and identified as
exceeding the public RFR MPE limits.14 Although on July 11 an
engineer from one of the stations at the site repaired the chain
and strung it across the driveway, Commission agents noted on
July 12 that the area exceeding the public limit was still
accessible to the general public exiting from the Post Office and
did not have RFR warning signs posted. Specifically, agents were
able to access the site without encountering protective fencing
or warning signs on July 11, 2002 on three sides of the area and
on two sides of the area on July 12, 2002. The agents marked a
single spot in the middle of the approximately 10 feet by 100
feet area identified on July 11 as exceeding the MPE public
limits and made RFR measurements with all stations transmitting
to establish the overall power density level. Field agents then
requested each licensee in the vicinity of the identified area to
temporarily and sequentially power down its transmitter. Field
agents made two spatially averaged RFR power density measurements
of each of the 21 broadcast stations while its transmitter was
powered off to determine the power density level produced by each
transmitter and to determine which transmitters were producing
power density levels that exceeded 5% or more of its individual
MPE limit at the identified area.15 The on-air and off-air
measurements indicated that four of the 21 stations within the
vicinity were producing power density levels at significantly
more than 5% of the public MPE limits applicable to their
transmitter.16
9. On July 12, 2002, agents selected a single area on the
driveway from which they took all of the measurements. The
overall RFR power density measurement on the driveway was 160.5%
of the MPE public limit with all stations in operation.17 When
KBIG-FM went off the air, the RF level decreased to 78.75% of the
MPE public limit indicating that KBIG-FM was producing a power
density level that was 81.75 % of the MPE limit for its
particular transmitter. Based on these measurements and further
calculations, the power density level produced by station KBIG-FM
was 0.1635 mW/cm2. Based upon similar procedures, FM station
KKBT was producing a power density level that was 11% of the MPE
limit for its particular transmitter (a power density of 0.022
mW/cm2), FM station KRTH-FM was producing a power density level
that was 11.75% of the MPE limit for its particular transmitter
(a power density of 0.0235 mW/cm2), and TV station KWHY-TV was
producing a power density level that was 10.5% of the MPE limit
for its particular transmitter (a power density of 0.036 mW/cm2)
to the total RFR in the area identified as exceeding the public
RFR MPE limits. 18
Station MHz FCC MPE Power % of FCC MPE
Limit Density Limit
Produced by Produced by
Station Station
Transmitter Transmitter
KBIG-FM 104.3 0.2 mW/cm2 0.1635 81.75%
mW/cm2
KKBT 100.3 0.2 mW/cm2 0.022 11%
mW/cm2
KRTH-FM 101.1 0.2 mW/cm2 0.0235 11.75%
mW/cm2
KWHY-TV 518 0.35 0.036 10.5%
mW/cm2 mW/cm2
III. Discussion
10. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.19 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day. 20
11. Section 1.1310 of the Rules requires licensees to
comply with RFR exposure limits.21 Table 1 in Section 1.1310 of
the Rules provides that the general population RFR maximum
permissible exposure limit for a station operating in the
frequency range of 30 MHz to 300 MHz is 0.200 mW/cm2 and the
general population RFR maximum permissible exposure limit for a
station operating in the frequency range of 300 MHz to 1500 MHz
is f/1500 mW/cm2 or for station KWHY-TV which operates on 518
MHz, 0.345 mW/cm2. Section 1.1307(b)(3) of the Rules states in
part that ``when the guidelines specified in Section 1.1310 are
exceeded in an accessible area due to the emissions from multiple
fixed transmitters, actions necessary to bring the area into
compliance are the shared responsibility of all licensees whose
transmitters produce, at the area in question, power density
levels that exceed 5% of the power density exposure limit
applicable to their particular transmitter.'' 22
12. On July 11 and 12, 2002, FCC agents found four
broadcast stations transmitting from the Mt. Wilson
communications and antenna farm site that produced significantly
over 5% to a RF field in a publicly accessible area that exceeded
the public RFR MPE limits by 60.5%. Each of the licensees of
these four stations was required to ensure that by September 1,
2000, their stations were in compliance with the RFR MPE limits
adopted by the Commission in 1996, or file an Environmental
Assessment. Licensees also bear responsibility to restrict
access to areas that exceed the RFR limits or to modify the
facility and operation so as to bring the station's operation
into compliance with the RFR exposure limits prior to public or
worker access to the impacted area.23
13. At the time of inspections on July 11 and 12, 2002, no
Environmental Assessments were on file with the Commission for
any of the four stations. The main antenna site that included
the area found to exceed the public MPE limits was not enclosed
within protective fencing. A United States Post Office was
located 100 ft. from the noncompliant area. On July 11, 2002, no
RFR warning signs were found in the immediate vicinity
demarcating the area exceeding the FCC's public RFR MPE limits.
Although fences did surround the bases of broadcast towers and
some did have RFR warning signs, the area where RFR was found to
exceed the public MPE limits was not encompassed within a fence
or properly demarcated with RFR warning signs. On July 11, 2002,
agents inspecting the site found a broken chain and battered ``No
Trespassing'' sign lying in a pile and unattached at the side of
the driveway. In addition, on both days, Commission agents found
that the area exceeding the public limit was accessible to the
general public exiting from the Post Office and did not have RFR
warning signs posted. The overall lack of controlled access to
the area and the unmarked and unrestricted access observed by the
Commission agents at the time of inspection made areas inside the
broken chain, including the area found to exceed the limits,
publicly accessible and thus held to the Commission's public MPE
limits. We find that the licensees did not restrict public
access to areas where RFR exceeded the public MPE limits.
14. Given that the area found to exceed the public limits
was unrestricted, unmarked, in very close proximity to a United
States Post Office, and in the general vicinity of the Mt. Wilson
Observatory and Park, all licensees found producing power density
levels significantly greater than 5% of the FCC's public limits
for its particular transmitter in this area share responsibility
to ensure compliance with the limits. Based on the RFR
measurements conducted on July 11 and 12, 2002, by the FCC
agents, we find that the operation of stations KBIG-FM, KKBT,
KRTH-FM, and KWHY-TV each produced significantly more than 5% of
its particular MPE limit in an accessible area that exceeded the
public MPE limits. Specifically, KBIG-FM contributed 81.75%,
KKBT produced 11%, KRTH-FM produced 11.75%, and KWHY-TV produced
10.5% of the applicable limits in this area.
15. Based on the evidence, we find that each of the
captioned licensees willfully and repeatedly violated Section
1.1310 of the Rules on July 11 and 12, 2002 by producing
significantly in excess of 5% of the RFR MPE limit for its
particular transmitter in a publicly accessible area found to
exceed the public RFR MPE limits and by failing to adequately
take measures to prevent the public from accessing areas that
exceeded the RFR exposure limits. We also find that the four
licensees violated our rules by failing to file any Environmental
Assessment statements with the Commission although each was
required to do so by September 1, 2000.24
16. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')25 does
not specify a base forfeiture for violation of the RFR maximum
permissible exposure limits in Section 1.1310.26 However, we
recently determined that an appropriate base forfeiture amount
for violation of the RFR MPE limits is $10,000, noting the public
safety nature of the rules.27
17. We propose the $10,000 base forfeiture amount to each
station that produced power density levels significantly over the
5% threshold. In this case, each of the four identified stations
apparently failed to comply with Section 1.1310 of the Rules,
failed to take measures to adequately prevent the public from
accessing areas that exceeded the RFR exposure limits, and
produced power density levels significantly more than 5% to the
RFR exposure level exceeding the public MPE limits.
Consequently, it is appropriate to hold each station apparently
liable for a $10,000 forfeiture.
18. In assessing the proposed monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act,28 which include 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 require. For each of the four stations, we believe
that the seriousness of the safety violation warrants the
proposed forfeiture amount of $10,000 each. Accordingly,
applying the Forfeiture Policy Statement and statutory factors to
the instant case, we conclude that AMFM, licensee of station
KBIG-FM, Radio One, licensee of FM station KKBT, Infinity,
licensee of station KRTH-FM, and Telemundo, licensee of station
KWHY-TV, are each apparently liable for a $10,000 forfeiture for
a total combined apparent liability for forfeiture in the amount
of $40,000.
19. On September 3, 2003, a field agent conducted an
inspection of the Mt. Wilson site and found that the stations
subsequently installed additional fencing and warning signs.
However, the field agent discovered that a gate leading to one of
the entrances to the site was standing open. Thus, although the
stations have installed additional fencing and warning signs,
they failed to exercise due diligence in restricting access to
areas that exceeded the public MPE limits. Accordingly, AMFM,
Radio One, Infinity, and Telemundo are each hereby directed to
file, within 30 days of the release of this NAL, sworn statements
describing their plans to ensure that the fences surrounding the
area are shut and that the gates are locked. The statements must
be filed either with their responses to this NAL, or separately
if they do not respond (e.g., if they pay the proposed
forfeitures).
IV. Ordering Clauses
20. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311, and 1.80 of the
Rules,29 AMFM Radio Licenses, L.L.C., licensee of station KBIG-FM
IS hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of ten thousand dollars ($10,000) for willfully and
repeatedly violating Section 1.1310 of the Rules.
21. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b)
of the Act and Sections 0.111, 0.311, and 1.80 of the Rules,
Radio One Licenses, LLC, licensee of FM station KKBT IS hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willfully and
repeatedly violating Section 1.1310 of the Rules.
22. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311, and 1.80 of the Rules,
Infinity Broadcasting Operations, Inc., licensee of station KRTH-
FM, IS hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willfully and repeatedly violating Section 1.1310 of the Rules.
23. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311, and 1.80 of the Rules,
Telemundo of Los Angeles License Corporation, licensee of station
KWHY-TV, IS hereby NOTIFIED of this APPARENT LIABIITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willfully and repeatedly violating Section 1.1310 of the Rules.
24. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the FCC's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, AMFM Radio Licenses, L.L.C., Radio
One Licenses, LLC, Infinity Broadcasting Operations, Inc., and
Telemundo of Los Angeles License Corporation, SHALL EACH PAY the
full amount of the individually proposed forfeitures or SHALL
EACH FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
25. IT IS FURTHER ORDERED THAT, within 30 days of the
release of this Notice of Apparently Liability for Forfeiture,
AMFM Radio Licenses, L.L.C., Radio One Licenses, LLC, Infinity
Broadcasting Operations, Inc., and Telemundo of Los Angeles
License Corporation, SHALL EACH FILE a sworn statement in
accordance with paragraph 19 above.
26. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the appropriate FCC Registration Number (FRN) and the NAL/Acct.
No. referenced in the caption.
27. The response, if any, and the statements referenced in
paragraph 19 above, must be mailed to the Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Washington, D.C. 20554, and must include
the appropriate NAL/Acct. No. referenced in the caption.
28. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
29. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.30
30. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Spectrum Enforcement Division.
Your certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the definitions
set forth in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
31. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by First Class and Certified
Mail, Return Receipt Requested, to AMFM Radio Licenses, L.L.C.,
2625 S. Memorial Drive, Suite A, Tulsa, OK 74129; Radio One
Licenses, LLC, 5900 Princess Garden Parkway, 8th Floor, Lanham,
MD 20706; Infinity Broadcasting Operations, Inc., 2000 K Street,
NW, Suite 725, Washington, DC 20006; and Telemundo of Los Angeles
License Corporation, 2290 West Eight Avenue, Hialeah, FL 33010.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently
owned and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships,
villages, school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent
size criterion described below.
Industry Type Description of Small
Business Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has
400,000 Subscribers Nationwide
or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange
Carriers, Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions for
calculating average annual receipts and average employment of
a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106,
respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public
Fixed Radio (Public and
Control Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very
Small Aperture Terminal
Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space
Stations
Non-Geostationary Space
Stations
Direct Broadcast
Satellites
Home Satellite Dish
Service
Mass Media Services
Television Services
$12 Million in Annual
Receipts or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual
Receipts or Less
Radio Auxiliary,
Special Broadcast and Other
Program Distribution
Services
Multipoint Distribution Auction Special Size
Service Standard -
Small Business is less
than $40M in annual gross
revenues for three preceding
years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size
Phase II Licensees standard -
Small Business is average
gross revenues of $15M or less
for the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is
average gross revenues of $3M
or less for the preceding three
years (includes affiliates and
controlling principals)
700 MHZ Guard Band
Licensees
Private and Common
Carrier Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size
Communications Services standard -
(Block C) Small Business is $40M or
less in annual gross revenues
for three previous calendar
years
Very Small Business is
average gross revenues of $15M
or less for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone 1,500 Employees or Fewer
Service
Air-Ground
Radiotelephone Service
800 MHz Specialized Auction special size
Mobile Radio standard -
Small Business is $15M or
less average annual gross
revenues for three preceding
calendar years
900 MHz Specialized
Mobile Radio
Private Land Mobile 1,500 Employees or Fewer
Radio
Amateur Radio Service N/A
Aviation and Marine
Radio Service 1,500 Employees or Fewer
Fixed Microwave
Services
Small Business is 1,500
Public Safety Radio employees or less
Services Small Government Entities
has population of less than
50,000 persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or
Services less average annual gross
revenues for three preceding
years
Very Small Business is
average gross revenues of $15M
or less for the preceding three
years
39 GHz Service
Auction special size
standard (1996) -
Multipoint Distribution Small Business is $40M or
Service less average annual gross
revenues for three preceding
calendar years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional
Television Fixed Service
Auction special size
standard (1998) -
Local Multipoint Small Business is $40M or
Distribution Service less average annual gross
revenues for three preceding
years
Very Small Business is
average gross revenues of $15M
or less for the preceding three
years
First Auction special size
standard (1994) -
Small Business is an
entity that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average
gross revenues of $15M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is
average gross revenues of $3M
or less for the preceding three
years (includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master
Antenna Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent 1,500 Employees or Fewer
Licensees
24 GHz - Future Small Business is average
Licensees gross revenues of $15M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is
average gross revenues of $3M
or less for the preceding three
years (includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information $18 Million in Annual
Services Receipts or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video
Equipment Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual
Receipts or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual
Receipts or Less
Tower Owners (See Lessee's Type of
Business)
_________________________
1 47 C.F.R. § 1.1310.
2 47 U.S.C. § 503(b).
3 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'').
4 See 47 C.F.R. § 1.1310, Table 1. The MPE limits are generally
based on recommended exposure guidelines published by the
National Council on Radiation Protection and Measurements
(``NCRP'') in ``Biological Effects and Exposure Criteria for
Radiofrequency Electromagnetic Fields,'' NCRP Report No. 86,
Sections 17.4.1, 17.4.1.1., 17.4.2, and 17.4.3 (1986). In the
frequency range from 100 MHz to 1500 MHz, the MPE limits are also
generally based on guidelines contained in the RF safety standard
developed by the Institute of Electrical and Electronics
Engineers, Inc. (``IEEE'') and adopted by the American National
Standards Institute (``ANSI'') in Section 4.1 of ``IEEE Standard
for Safety Levels with Respect to Human Exposure to Radio
Frequency Electromagnetic Fields, 3 kHz to 300 GHz,'' ANSI/IEEE
C95.1-1992 (1992).
5 47 C.F.R. § 1.1310, Note 1 to Table 1.
6 47 C.F.R. § 1.1310, Note 2 to Table 1.
7 See, for example, OET Bulletin 65.
8 See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.
9 Id. at 13520-21; 47 C.F.R. § 1.1307(b)(3).
10 Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13524; 47 C.F.R. §
1.1307(b)(3). Power density is equal to the square of the
electric field strength divided by the characteristic impedance
of free space (377 ohms). Similarly, power density is equal to
the square of the magnetic field strength times the
characteristic impedance of free space. The power density is
expressed in milliwatts per square centimeter. Guidelines,
Second Memorandum Opinion and Order and Notice of Proposed
Rulemaking, 12 FCC Rcd at n.74.
11 Id. at 13520-21; 47 C.F.R. § 1.1307(b)(3).
12 Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13538; 47 C.F.R. § 1.1307(b).
13 Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13540; 47 C.F.R. §
1.1307(b)(5). See also, Public Notice, Year 2000 Deadline for
Compliance with Commission's Regulations Regarding Human Exposure
to Radiofrequency Emissions (released Feb. 25, 2000); Public
Notice, Erratum to February 25, 2000 Public Notice, 15 FCC Rcd
13600 (released April 27, 2000); Public Notice, Reminder of
September 1, 2000, Deadline for Compliance with Regulations for
Human Exposure to Radiofrequency Emissions, 15 FCC Rcd 18900
(released Aug. 24, 2000).
14 Agents contacted all of the 21 relevant broadcast stations
after the RFR measurements to arrange for On-Off testing on July
12, 2002.
15 Section 1.1307(b)(3) of the Rules states: ``In general, when
the guidelines specified in § 1.1310 are exceeded in an
accessible area due to the emissions from multiple fixed
transmitters, actions necessary to bring the area into compliance
are the shared responsibility of all licensees whose transmitters
produce, at the area in question, power density levels that
exceed 5% of the power density exposure limit applicable to their
particular transmitter...'' 47 C.F.R. § 1.1307(b)(3).
16 Measurements were taken for each transmitter operating at the
site, including auxiliary, analog and digital transmitters.
17 Table 1 of Section 1.1310 specifies the applicable MPE limits
in terms of power density (mW/cm2) for FM and television
broadcast station transmitters. The maximum power density levels
permitted are frequency dependent. During the Mt. Wilson
inspection, the FCC agents utilized a FCC owned, calibrated RF
meter with a calibrated probe that measures the electric field
from RF signals in the band 300 kHz to 40 GHz. The probe is a
sensor designed to simultaneously measure the RF emissions of
multiple transmitters on widely separated frequencies such as
would occur at an antenna farm containing both FM broadcast
stations and television stations and can be used to determine the
total RF power level at a particular location. The probe's
frequency response curve is ``shaped'' to mimic the FCC MPE
limits. The energy of the signals the probe detects are
converted to a power density, then calculated as a percentage of
the MPE limit for the appropriate frequency and added together.
The results are displayed on the meter as a percentage of the MPE
limit. See, generally, OET Bulletin 65 at Section 3, Measuring
RF fields.
18 The combined power density levels produced by the four
stations listed in this NAL add up to 115% of the Commission's
MPE limits. The difference between the 115% produced by the four
stations and the power density level measurements with all
stations operational, 160.5%, is accounted for by the fact that
there were 17 other stations that were not producing power
density levels at significantly more than 5% of the public MPE
limits, but did add to the overall power density level.
19 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
20 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
'repeated', ... means the commission or omission of such act more
than once or, if such commission or omission is continuous, for
more than one day.''
21 47 C.F.R. § 1.1310.
22 47 C.F.R. § 1.1307(b)(3)
23 47 C.F.R. §§ 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional
guidance is provided in OET Bulletin 65.
24 47 C.F.R. § 1.1307(b)(5).
25 Forfeiture Policy Statement and Amendment of Section 1.80(b)
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
26 The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should
be imposed. The Forfeiture Policy Statement states that ``...
any omission of a specific rule violation from the ...
[forfeiture guidelines] ... should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant.
Forfeiture Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the Forfeiture
Policy Statement and issue forfeitures on a case?by?case basis,
under its general forfeiture authority contained in Section 503
of the Act. Id.
27 A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).
28 47 U.S.C. § 503(b)(2)(D).
29 47 C.F.R. §§ 0.111, 0.311 and 1.80.
30 See 47 C.F.R. § 1.1914.