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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File No. EB-02-DV-439
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 )
FORFEITURE ORDER
Adopted: December 8, 2004 Released: December
10, 2004
By the Commission:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue monetary
forfeitures of ten thousand dollars ($10,000) each against
Infinity Broadcasting Operations, Inc. (``Infinity''), licensee
of FM radio station KRTH-FM, Telemundo of Los Angeles License
Corporation (``Telemundo''), licensee of TV station KWHY-TV, and
Radio One Licenses, LLC (``Radio One''), licensee of FM radio
station KKBT, all serving Los Angeles, California, (collectively
``Mt. Wilson Licensees'')1 for willful and repeated violations of
Section 1.1310 of the Commission's Rules (``Rules'')2 by failing
to comply with radio frequency radiation (``RFR'') maximum
permissible exposure (``MPE'') limits applicable to facilities,
operations, or transmitters.
2. On October 22, 2003, the Commission issued a Notice of
Apparent Liability for Forfeiture (``NAL'')3 to AMFM Radio
Licenses, L.L.C. (``AMFM''), licensee of FM radio station KBIG-
FM,4 Infinity, Telemundo, and Radio One for forfeitures in the
amount of ten thousand dollars ($10,000) each. Each of the
parties filed a response to the NAL on December 12, 2003.5
II. BACKGROUND
3. 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.6
The Commission adopted maximum permissible exposure (``MPE'')
limits for electric and magnetic field strength and power density
for transmitters operating at frequencies from 300 kHz to 100
GHz.7 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.8 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.9 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.10 Licensees can demonstrate compliance by restricting
public access to areas where RFR exceeds the public MPE limits.11
4. 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.''12 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.''13 The 5% threshold applies to the
power density limit or to the square of electric or magnetic
field strength limit.14 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.15
5. 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.16 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.17
6. The Mount 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, was
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. Given the accessibility of the site by the general
public, along with the dearth of warning signs, the RFR MPE
limits for ``General Population/Uncontrolled Exposure'' applied
to any readings taken at the accessible areas.18
7. 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 over 50%.
8. 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.
9. 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.19 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. In other words, 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. The
overall RFR power density measurement on the driveway was 160.5%
of the MPE public limit with all stations in operation.20 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 for each broadcast station 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.21
10. 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.22 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.23
11. On September 3, 2003, a field agent conducted an
inspection of the Mt. Wilson site and found that the Mt. Wilson
Licensees had 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.
It appeared that although the Mt. Wilson Licensees had installed
additional fencing and warning signs, they failed to exercise due
diligence in restricting access to areas that exceeded the public
MPE limits.
12. On October 22, 2003, the Commission issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to AMFM, Infinity,
Telemundo, and Radio One for forfeitures in the amount of ten
thousand dollars ($10,000) each. Also, given the September 3,
2003 inspection, each of the Mt. Wilson Licensees was directed to
file sworn statements describing its plans to ensure that the
fences surrounding the area are shut and that the gates are
locked. Each of the parties filed a response to the NAL on
December 12, 2003. AMFM does not dispute the NAL,24 while
Infinity, Telemundo, and Radio One all argue the proposed
forfeitures should be reduced, dismissed or rescinded.
13. Infinity . Infinity seeks reduction or rescission of
the proposed forfeiture based on its allegations that the
Commission agents did not make KRTH aware that they believed KRTH
to be one of the stations exceeding the 5% RFR MPE threshold,
that the NAL was premised on factual misunderstandings about the
Mt Wilson site, and that Infinity has no legal right to control
the non-compliant area.25 Infinity also argues that the NAL
represents an inequitable approach and that the Commission should
be seeking a collaborative approach in its enforcement of the RFR
Rules. 26 Finally, Infinity argues that, even if KRTH was part
of a multi-user site RFR violation, the $10,000 forfeiture amount
should be apportioned among the violators according to ``each
station's percentage violation to the overall power density at
the problematic location.''27
14. Telemundo. Telemundo argues that, in light of the
complexities inherent to the Mt. Wilson site and RF radiation, no
sufficiently reliable evidence justifies inclusion of KWHY.
Telemundo asserts that the margin of uncertainty is too great
given the broadband methodology used by the FCC agents.28
Telemundo notes that the NAL ``itself implies that the
Commission was aware of some uncertainty in their measurements
which may be why the Notice, without explanation, did not name
any party that may have exceeded the 5 percent threshold but did
not exceed a 10 percent threshold.''29 Telemundo questions why
the Commission did not include these parties and why the
Commission did not address uncertainty factors in the NAL.30
Telemundo asserts that it made narrowband measurements on
December 1, 2003, that are more accurate than the measurements
made by the field agents, and that these measurements show that
KWHY's contribution to have been approximately 2.3%.31 Telemundo
also asserts that using the Commission's predictive methodology
to calculate projections of power density results in a
contribution of 2.1% for KWHY.32 Finally, Telemundo argues that
it should be neither liable for the forfeiture nor the
``monitoring requirement,'' but if it is found liable, the
forfeiture amount should be divided proportionately among the RFR
contributors.33
15. Radio One. Radio One states that the Commission may
have erred by assigning the power density level of KHHT(FM),
which broadcasts from the same tower as KKBT(FM), to KKBT(FM) in
its field measurements.34 Radio One also argues, pursuant to a
study it conducted in January of 2002, that KKBT(FM) contributes
less than 5% of the general public MPE limits at the Mt. Wilson
site, and, consequently, that KKBT(FM) was not a contributor to
the area of non-compliance.35 Finally, Radio One argues that
even if the Commission did not err in its field measurements,
Radio One's reliance on its field study was reasonable and was a
good faith basis for Radio One's belief that KKBT(FM) was not
required to undertake the obligations set forth in Section
1.1307(b)(3) concerning stations that exceed the 5% RFR MPE
threshold.36
III. DISCUSSION
16. The proposed forfeiture amounts in this case were
assessed in accordance with Section 503(b) of the Act,37 Section
1.80 of the Rules,38 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80(b) of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'').39 In examining the Mt. Wilson Licensees'
responses, Section 503(b) of the Act requires 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
any such matters as justice may require.40
17. Infinity. Infinity alleges that the field agents did
not make KRTH aware until after the inspection that they believed
KRTH to be one of the stations exceeding the 5% RFR MPE threshold
and that the NAL is premised on key factual misunderstandings
about the Mt. Wilson multi-user site.41 Infinity also alleges it
``has no legal right to set foot on the Driveway, nor does it
have a legal right to erect, maintain or control gates or fencing
on or around the Driveway.''42 Infinity argues that the NAL
represents an inequitable approach and that the Commission should
be seeking a collaborative approach, by notifying the stations
exceeding the 5% RFR MPE threshold, ascertaining leasehold rights
in the driveway, and working with the stations to produce a
``common solution'' that would make the Mt. Wilson site ``a model
of cooperation and RFR compliance.''43 Finally, Infinity argues
that, assuming KRTH was part of a multi-user site RFR violation,
the Commission should treat the alleged violation as a single
violation with a total forfeiture amount of $10,000, to be
apportioned among the violators according to ``each station's
percentage violation to the overall power density at the
problematic location.''44
18. Infinity first argues that the Commission agents did
not make KRTH aware until after the inspection that they believed
KRTH to be one of the stations exceeding the 5% RFR MPE
threshold.45 While there is no legal requirement to notify an
entity of a violation prior to an NAL, in fact Infinity and all
the other Mt. Wilson Licensees were advised on July 12, 2002 that
publicly accessible areas at the Mt. Wilson site exceeded the
public MPE. While Infinity, like the other Mt. Wilson Licensees,
did not receive notice of a proposed forfeiture until the NAL was
issued, all of the stations, including KRTH, whose transmitters
were part of the measurements, were given oral warnings
concerning the need to keep the gates closed and locked on July
12, 2002. As noted in the NAL, the Mt. Wilson Licensees failed
to keep the gates closed and locked, as revealed by the September
3, 2003 spot inspection.46 Infinity also alleges that the
Commission misunderstands the nature of the Mt. Wilson site and
that Infinity ``has no legal right to set foot on the Driveway,
nor does it have a legal right to erect, maintain or control
gates or fencing on or around the Driveway.''47 Infinity
operates KRTH's transmitter on a multi-user site, and, since
1996, has been obligated, pursuant to Section 1.1307(b)(3) of the
Rules to bring the area into compliance with the Commission's RFR
rules. The Commission expects ``[o]wners of transmitter sites to
allow applicants and licensees to take reasonable steps to comply
with [these] requirements . . . .''48 However, the Commission
has concluded that ``responsibilities pertaining to RF
electromagnetic fields properly belong[] with our licensees and
applicants, rather than with site owners.''49 If in fact
Infinity signed away rights that would have enabled it to meet
its obligations under the rules, the Commission certainly would
not consider that a mitigating fact in Infinity's favor.
19. We also find that Infinity is mistaken in its
interpretation of the meaning of its obligations under Sections
1.1307 and 1.1310, and the Commission's RF Second Memorandum
Opinion and Order. Infinity argues that the Commission should
not engage in the ``traditional enforcement model'' and should be
seeking a collaborative approach, by notifying the stations
exceeding the five percent RFR MPE threshold, ascertaining
leasehold rights in the Driveway, and working with the stations
to produce a ``common solution'' that would make the Mt. Wilson
site ``a model of cooperation and RFR compliance.''50 We do not
disagree with Infinity's stated goal and we encourage the Mt.
Wilson Licensees to work together to make the Mt. Wilson site a
model of cooperation and RFR compliance. However, it is the
responsibility of the licensees on the site to engage in a
collaborative approach to ensure that the public is not able to
access areas which could exceed the public MPE limits.51 The
Commission has encouraged licensees to engage in such
collaborations and to ``notify the appropriate Commission
licensing bureau if the operator of a co-located transmitter will
not cooperate in addressing a non-compliance problem.''52 The
Commission has also directed the staff to work with industry to
address such questions as may arise.53 But our policy
encouraging collaboration does not insulate licensees from
enforcement action for violations. In neither the Rules nor the
RF Second Memorandum Opinion and Order, does the Commission
suggest that anything other than the ``traditional enforcement
model'' be used with respect to a licensee that has willfully and
repeatedly violated the Commission's rules.54
20. Finally, Infinity argues that, assuming KRTH was part
of a multi-user site RFR violation, the Commission should treat
the alleged violation as a single violation with a total
forfeiture amount of $10,000, to be apportioned among the
violators according to ``each station's percentage violation to
the overall power density at the problematic location.''55 In
the RF Second Memorandum Opinion and Order, the Commission
suggested that at multi-user sites licensees could ``assign
compliance costs according to the percentage contributions at the
non-complying area(s) for situations involving no change in
transmitter costs.''56 The Commission, however, did not state
that forfeitures should be allocated in the same manner as
compliance costs. Each of the Mt. Wilson Licensees was found to
have apparently willfully and repeatedly exceeded the RFR MPE
limits detailed in Section 1.1310 of our Rules. Consequently,
each violation was a separate violation.57 It is the unique
intention of Section 1.1310 that the contribution of one station
alone may not violate the rule, while that station, when joined
by the RF contribution of other stations whose total RFR
contributions exceed the MPE limits, may find itself in
violation. Consequently, we require licensees to work together
to ensure compliance. As each of the Mt. Wilson Licensees
contributed over 5% of the total RFR exceeding the MPE limits,
each of the licensees is equally responsible for bringing the
area into compliance, according to Section 1.1307 of our Rules.
Because the Mt. Wilson Licensees failed to bring the area into
compliance, each is liable for an individual $10,000 forfeiture,
because of its contribution, pursuant to Section 1.1307(b), to
the violation of Section 1.1310 of our Rules. By allocating the
full forfeiture amount to each of the Mt. Wilson Licensees, we
again remind all licensees at multi-user sites that they may be
responsible for the full amount of a public safety forfeiture if
they do not comply with Sections 1.1307 and 1.1310 of our Rules.
21. Telemundo. Telemundo argues that, in light of the
complexities inherent to the Mt. Wilson site and RF radiation, no
sufficiently reliable evidence justifies inclusion of KWHY.
Telemundo asserts that the margin of uncertainty is too great
given the broadband methodology used by the FCC agents.58
Telemundo is correct in its assertion that there is an
uncertainty factor in every measurement.59 However, we do not
agree with Telemundo's assertion that the field agents' broadband
measurements are subject to far too much uncertainty to
constitute evidence on which the Commission can base an
enforcement action. Part of our measurement protocol involves
averaging the measurements to avoid uncertainty. Telemundo
states that two broadband measurements at the same location under
the same conditions are likely to vary as much as five to 10
percent. Telemundo asserts that the relevant baseline for all
transmitters at the Mt. Wilson site was 160.5 percent and
therefore, ``assuming the bare minimum of uncertainty, the
baseline is somewhere in a range of 152.5 to 168.5 percent.''60
From this assertion, Telemundo concludes that ``there is no way
to know where in the range each of the measurements fell [and
states that it] is entirely possible that, if measurements could
be perfect, the RFR Baseline should have been 153 percent and the
Per Station Measurement for KWHY should have been 151 percent,
yielding a KWHY contribution of 2 percent.''61
22. Telemundo envisions a scenario that, if accepted,
circumvents the RFR public safety rules to the detriment of the
public. The Commission's Rules state 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
. . .''62 As part of the investigation underlying the NAL, the
Commission's field agents, on July 11, 2002, took four
measurements, one each in the north, south, east and west
directions to establish the total RFR contributions. On July 12,
2002, two measurements were taken when each licensee powered off.
The two measurements were then averaged. The measurements and
subsequent calculations detailed in the NAL were made taking into
account both the manufacturer and calibration specifications for
the particular probes and meters used.63 Additionally, the
procedure to conduct at least two measurements, and average those
measurements helps mitigate inherent measurement error in the
equipment. The measurements taken concerning KWHY-TV showed that
the station produced 10.5% of its particular MPE limit in an
accessible area that exceeded the public MPE limit. Even
assuming the best case scenario for KWHY-TV, its contribution
would be 5.25 %. Conversely, assuming the worst case scenario
for KWHY-TV, its contribution would be 21%. Both extremes put
the station above the 5% category defined in Section
1.1307(b)(3).64
23. Telemundo notes that the NAL ``itself implies that the
Commission was aware of some uncertainty in their measurements
which may be why the Notice, without explanation, did not name
any party that may have exceeded the 5 percent threshold but did
not exceed a 10 percent threshold.''65 Telemundo questions why
the Commission did not include these parties and why the
Commission did not address uncertainty in the NAL.66 Infinity
also questions why stations with RFR readings closer to five
percent but not ``significantly exceeding'' five percent were not
included. Infinity argues that any FCC change of the five
percent standard set forth in the Multi-User Site RFR Rules to a
nebulous ``significantly exceeds five percent'' standard would
constitute an impermissible modification of the Multi-User Site
RFR Rule in an adjudicatory context, undermining the basis for
this enforcement action.67
24. We find that the NAL did not create a new ``nebulous''
standard nor did it amend, through the adjudicatory process, the
Commission's RFR Rules. Section 503(b) of the Act does not
require us to issue a forfeiture for every apparent violation we
investigate.68 The Commission is a regulatory agency with broad
prosecutorial discretion in enforcement proceedings.69 The
courts have found that, as a general matter, the Commission is
best positioned to weigh the benefits of pursuing an adjudication
against the costs to the agency and the likelihood of success.70
We find that issuing the NAL against those licensees that
produced power density levels significantly over the 5% threshold
was an appropriate use of that discretion. The fact that we
could have also taken action against other, less significant
violators, does not mitigate the instant licensees'
responsibility to ensure compliance nor does it alter the
responsibility of licensees contributing at the 5% threshold to
ensure compliance.
25. Telemundo also made narrowband measurements on December
1, 2003. Telemundo claims that these measurements are more
accurate than the measurements made by the field agents and that
these measurements show that KWHY's contribution to have been
approximately 2.3%.71 We do not dispute the accuracy of the
narrowband measurements but we cannot accept them as proof that
the field agents' measurements were made in error.72 The
Telemundo measurements were made almost 17 months after the field
agents' investigation. The measurements made by Telemundo may
very well be accurate for December 1, 2003. There is no evidence
that they are accurate for July 11 and 12, 2002. Notably,
Telemundo does not attempt to replicate the mix of transmitters
in use at the Mt. Wilson site on July 11 and 12, 2002, nor does
Telemundo indicate whether KBIG was operating from its main or
auxiliary transmitter on December 1, 2003, nor does Telemundo
delineate the transmitter changes at the Mt. Wilson site during
the 17 month period between July of 2002 and December of 2003.
Telemundo should not be surprised that an area in excess of the
public MPE limits existed at the Mt. Wilson site. The most
recent license renewal application for KWHY-TV includes an RF
Radiation Compliance Statement (``RF Statement'').73 The RF
Statement indicates that areas that exceeded the public MPE limit
existed along Video Road and near the U.S Post Office. The RFR
fields in these areas ranged from 155% to 205% of the public
limit.74 The RF Statement recommended that ``[d]ue to the
existence of the large area in excess of the public limit near
the [Post Office] at the center of the site under all operating
conditions,'' that one or both of the roads accessing the site be
gated off.75
26. Telemundo also asserts that the Commission's predictive
methodology, used to calculate projections of powers density,
results in a contribution of 2.1% for KWHY. Telemundo argues
that parties should be able to rely on calculated projections of
power density to ensure their compliance with the Commission's
Rules.76 While this may be true in many situations, the
Commission's Office of Engineering and Technology has stated, in
its guidance concerning predictive methods of determining RF
field strength:
When considering the contributions to field strength or
power density from other RF sources, care should be taken
to ensure that such variables such as reflection and
re-radiation are considered. In cases involving very
complex sites predictions of RF fields may not be possible, and a
measurement survey may be necessary . . . .77
Bulletin 65 specifically states that at a multi-user site, such
as an antenna farm, actual measurements of the RF field may be
necessary to determine whether there is a potential for human
exposure in excess of the MPE limits specified by the FCC.78 We
therefore find that the calculations made by Telemundo in
December 2003 do not disprove measurements made by the field
agents in July 2002.79 Where public safety is at issue, we
prefer actual measurements to calculations at multi-user antenna
sites.80
27. Finally, Telemundo argues that it should be neither
liable for the forfeiture nor the monitoring requirement, but if
it is found liable, the forfeiture amount should be divided
proportionately among the RFR contributors because ``Section
1.1307(b)(3) never indicates that five percent contributors
should share evenly in any responsibility.''81 As we stated
above, each of the Mt. Wilson Licensees was found to have
apparently willfully and repeatedly contributed in excess of 5%
to the RFR MPE levels that exceeded the public limits detailed in
Section 1.1310 of our Rules. Consequently, each violation was a
separate violation.82 Under the circumstances here, particularly
given the modest nature of the forfeiture amount, we conclude the
same amount for all the licensees is appropriate.
28. Radio One. Radio One argues that the Commission may
have been confusing KKBT(FM)'s measurements with those of
KHHT(FM). Radio One also states that in January of 2002, it
retained engineering consultants to conduct a radio frequency
electromagnetic field study and power density analysis of
KKBT(FM)'s broadcast transmissions at the Mt. Wilson site (``KKBT
Study'').83 According to Radio One, the ``study computed a power
density value for KKBT(FM) of 0.0063 mW/cm², or less than 3.2% of
the RFR MPE level of 0.2 mW/cm² for uncontrolled areas.''84
Based on this analysis, Radio One's ``study concluded that since
KKBT(FM) contributed less than 5% of the general public guideline
levels at the Mt. Wilson site, KKBT(FM) was believed ``not to be
a contributor to area non-compliance.'''85 Radio One argues that
in the event the Commission was not confusing its measurements
for KHHT(FM) and KKBT(FM), Radio One should be given a good faith
exception for reliance on the January 2002 study.86
29. Radio One states that the Commission may have erred by
assigning the power density level of KHHT(FM), which broadcasts
from the same tower as KKBT(FM), to KKBT(FM) in its field
tests.87 We disagree. The agents systematically contacted the
licensees for the transmitters and then requested each licensee
in the vicinity of the identified area to temporarily and
sequentially power down its transmitter. An agent accompanied
each engineer as he or she ``powered down'' the appropriate
transmitter to ensure that no errors were made concerning which
transmitter was being measured. Separate measurements were made
for KKBT(FM) and KHHT(FM) regardless of the fact the two stations
broadcast from the same tower.
30. Radio One also states, pursuant to the KKBT Study, that
measurements were taken and ``hotspots'' were found that exceeded
the public RFR MPE limits in two locations, both in front of
buildings accessible to the public.88 While the KKBT Study
states that the measurements show amounts between 24% and 27% of
the ``controlled'' MPE (or between 120% and 135% of the public
MPE), it does not detail the actual measurements that were taken,
nor does it indicate that any individual measurements were taken
for any of the stations on the Mt. Wilson Site.89 Instead, the
KKBT Study makes calculations using equations for FM antennas,
``incorporating the relative field factor'' to compute KKBT's
contribution, which it calculates to be 0.0063 mW/cm², or less
than 3.2% of the RFR MPE level of 0.2 mW/cm² for uncontrolled
(public) areas.90
31. Section 1.1307(b)(3) of the Rules states that when the
guidelines specified in Section 1.1310 are exceeded in an
accessible area due to emissions from multiple fixed
transmitters, actions necessary to bring the area into compliance
shall be the shared responsibility of all licensees whose
transmitters exceed five percent of the power density exposure
limit applicable to their particular transmitter.91 As stated
above, the Commission's Office of Engineering and Technology has
given guidance cautioning licensees at very complex sites, such
as Mt. Wilson, that ``predictions of RF fields may not be
possible, and a measurement survey may be necessary . . . .''92
The KKBT Study measured publicly accessible areas that exceed the
public MPE limit. The study did not include an actual on-off
measurement of the actual contribution of any particular
transmitter, including that of KKBT.93 Rather, Radio One
calculated the contribution of its transmitter to the RFR levels
it found exceeded the public maximum permissible exposure limit.
32. We note that a Radio Frequency Measurement Report (``RF
Amendment''), filed as an amendment to the most recent license
renewal application for KKBT(FM),94 includes a study, dated
September 1997, detailing the radio frequency electromagnetic
field measurements for the Mt. Wilson site. According to the RF
Amendment, calculations showed that KKBT(FM) contributes
``greater than 10 uW/cm² or greater than 5% of 0.2 mW/cm² and
therefore [is] considered [a] contributor[] to electromagnetic
fields in non-controlled areas.''95 The RF Amendment also states
that measurements showed that a ``couple of `hot spots' were
found against a fence along the access road just east of the KKBT
[ ] site and one fifty foot long by six feet wide strip was found
in the center of the road just south of the site in front of the
Allcom building.''96 Neither the Radio One Response nor the KKBT
Study addresses the RF Amendment or how conditions have changed
to such an extent, or permanently, such that the contribution
allocated to KKBT(FM) in the RF Amendment is no longer
accurate.97 Had Radio One conducted a study which provided
actual measurements of its station's contribution, we would be
able to better consider Radio One's request for a good faith
exception.98 We also note that Radio One's measurements revealed
two ``hot spots'' in publicly accessible areas. Radio One,
however, apparently made no contact with the other licensees on
the site to determine the actual contributing and, therefore,
responsible parties, or, more importantly, to make the non-
compliant areas inaccessible to the public. Given the complex
nature of the Mt. Wilson site, the Bulletin 65 guidance, and the
statements made concerning KKBT(FM)'s RFR contribution in the RF
Amendment, we do not believe that Radio One is entitled to a good
faith exception because of the January 2002 study.
33. We also continue to find that KKBT(FM) contributed
greater than 5% to the overall RFR MPE. Radio One is unable to
show that the field agents attributed the KHHT(FM) measurements
to KKBT(FM). Radio One's KKBT Study, done in January 2002,
reveals ``hot spots'' similar to the area of non-compliance found
by the FCC agents in July 2002. The KKBT Study, however, does
not measure or calculate KKBT(FM)'s relative contribution to the
``hot spots'' when KBIG is operating with its auxiliary
transmitter. Obtaining different contribution levels at
different points in time is expected at sites as Mt. Wilson that
include daily changes in the RF environment based on what main or
auxiliary transmitters are operating at any given time at
variable power levels. It is precisely this type of publicly
accessible, complex, multi-user site that warrants licensee
cooperation to ensure the public is protected from exposure to
RFR levels above the MPE limit.
34. All of the Mt. Wilson Licensees were also required to
submit sworn statements ``describing their plans to ensure that
the fences surrounding the area are shut and that the gates are
locked.''99 AMFM states that if it intends to use the KBIG-FM
auxiliary facility ``at a power greater than that which would
cause the public MPE limits to be exceeded on the driveway
hotspot, [it] will confirm that the driveway off Video Road is
secured . . . .''100 Infinity, Telemundo and Radio One all
submitted sworn statements indicating that when KBIG-FM decides
to operate from its auxiliary transmitter, it will confirm that
the driveway is secured.101 These licensees continue to
misinterpret their responsibilities under the Commission's RFR
Rules. Each of the four Mt. Wilson Licensees exceeded the five
percent limit, therefore each share in the responsibility to
bring the area into compliance102 and make the non-compliant area
inaccessible to the public.
35. We have examined the responses to the NAL from each of
the Mt. Wilson Licensees pursuant to the statutory factors above,
as well as in conjunction with the Policy Statement. As a result
of our review, we conclude that Radio One, Infinity, and
Telemundo, willfully and repeatedly violated Section 1.1310 of
the Rules and the appropriate forfeiture amount is ten thousand
dollars ($10,000) for each.103
IV. ORDERING CLAUSES
36. Accordingly, 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 LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully and repeatedly violating Section
1.1310 of the Rules.
37. 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 LIABLE FOR A MONETARY FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully and repeatedly violating
Section 1.1310 of the Rules.
38. 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 LIABLE FOR A MONETARY FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully and repeatedly violating
Section 1.1310 of the Rules.
39. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.104
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/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
Washington, D.C. 20554.105
40. IT IS FURTHER ORDERED THAT a copy of this ORDER shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to 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
_________________________
1Although AMFM Radio Licenses, L.L.C., licensee of KBIG-FM, has
paid its forfeiture, it will also be included in the collective
term ``Mt. Wilson Licensees.''
247 C.F.R. § 1.1310.
3In the Matter of AMFM Radio Licenses, L.L.C., 18 FCC Rcd 22769
(2003).
4AMFM paid the $10,000 forfeiture on December 12, 2003, and,
additionally, filed a response.
5See Response of AMFM Radio Licenses, Inc., dated December 12,
2003 (``AMFM Response); Response of Radio One Licenses, LLC,
dated December 12, 2003 (``Radio One Response''); Response of
Infinity Broadcasting Operations, Inc., dated December 12, 2003
(``Infinity Response''); and Response of Telemundo of Los Angeles
License Corporation, dated December 12, 2003 (``Telemundo
Response''). The Mt. Wilson Licensees sought and received an
extension of time from the Enforcement Bureau's Spectrum
Enforcement Division to file their responses on December 12,
2003.
6Guidelines for Evaluating the Environmental Effects of
Radiofrequency Radiation, Report and Order, ET Docket No. 93-62,
11 FCC Rcd 15123 (1996) (``RF First Report and Order''), 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) (``RF Second Memorandum Opinion and Order.'')
7See 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).
8Table 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.
947 C.F.R. § 1.1310, Note 1 to Table 1.
1047 C.F.R. § 1.1310, Note 2 to Table 1.
11See, for example, OET Bulletin 65.
12See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.
13RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13520-21;
47 C.F.R. § 1.1307(b)(3).
14RF Second Memorandum Opinion and Order, 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. RF Second
Memorandum Opinion and Order,12 FCC Rcd at n.74.
15Id. at 13520-21; 47 C.F.R. § 1.1307(b)(3).
16RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13538; 47
C.F.R. § 1.1307(b).
17RF Second Memorandum Opinion and Order, 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).
18See 47 C.F.R. § 1.1310, Table 1 (General
population/uncontrolled limits apply in situations in which the
general public may be exposed). ``Members of the general public
always fall under this category when exposure is not employment
related . . . .'' RF First Report and Order, 11 FCC Rcd 15123,
15139 (1996).
19Agents contacted broadcast stations after the RFR measurements
to arrange for On-Off testing on July 12, 2002.
20Table 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.
21Section 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).
22 Measurements were taken for each transmitter operating at the
site, including auxiliary, analog and digital transmitters.
23The 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.
24AMFM raised no issues in its response but noted that the field
agent testing occurred while KBIG-FM was operating from its
auxiliary facility. AMFM states that ``[w]hen KBIG-FM operates
from its main antenna the total RFR level on the area is reduced
such that it remains within public MPE limits.'' AMFM Response
at 1. AMFM paid the NAL and thus this proceeding is final with
respect to it.
25Infinity Response at 6 - 7.
26Infinity Response at 7.
27Infinity Response at 10 - 12.
28Telemundo Response at 6 - 8.
29Telemundo Response at 8 n.18.
30Telemundo Response at 8 n.18.
31Telemundo Response at 8 - 9.
32Telemundo Response at 10.
33Telemundo Response at 11 - 12.
34Radio One Response at 4 - 5.
35Radio One Response at 3 - 4.
36Radio One Response at 6. We note that Radio One also
incorporates by reference the responses filed by Infinity and
Telemundo.
3747 U.S.C. § 503(b).
3847 C.F.R. § 1.80.
39Forfeiture 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).
4047 U.S.C. § 503(b)(2)(d).
41Infinity Response at 6 - 7.
42Infinity Response at 7.
43Infinity Response at 8 - 10. Although Infinity does not
dispute the field agents' measurements concerning its
contribution to the RFR exceeding MPE limits at the Mt. Wilson
site, it, like Telemundo, questions whether licensees whose
measurements did not significantly exceed five percent were not
held liable because of ``inherent measurement imprecision.''
Infinity Response at 5 n. 5. We will discuss this issue below.
44Infinity Response at 10 - 12.
45Infinity Response at 7.
46NAL at ¶ 19. A subsequent inspection of the Mt. Wilson site on
August 17, 2004 revealed that all gates were closed and locked.
47Infinity Response at 8. Telemundo agrees and argues that no
action directly within its control can make the specified area
inaccessible or eliminate the hotspot. Telemundo Response at 12.
4847 C.F.R. § 1.1307(b)(3).
49RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13522
(1997).
50Infinity Response at 8 - 10. Infinity alleges that because the
Driveway sits on United States Government property, as
administered by the U.S. Forest Service, the FCC was
``effectively wearing two hats - one as inspector and one as
property owner.'' Infinity Response at 9. Contrary to
Infinity's assertions, the Commission does not own or administer
the Mt. Wilson site.
5147 C.F.R. §§ 1.1307(b)(3), 1.1310 .
52RF Second Memorandum Opinion and Order, 13 FCC Rcd at 13524.
53RF Second Memorandum Opinion and Order, 13 FCC Rcd at 13521.
54Infinity also argues that the record does not establish an area
of non-compliance on the date the Commission field agents
performed their follow-up inspection because there ``is no
evidence of which Infinity is aware that on September 3, 2003,
KBIG . . . was operating from it auxiliary antenna.'' Publicly
accessible, non-compliant areas at the Mt. Wilson site, including
the area detailed in the NAL, have been known to the Mt. Wilson
Licensees, since at least July 12, 2002, and, as KKBT(FM)'s and
KWHY-TV's filings show, since as early as 1997. It appears that
Infinity has made no effort to ascertain the RFR situation at the
Mt. Wilson site, by contacting other licensees, or by setting
forth a plan to ensure non-compliant areas be made compliant or
inaccessible to the public. Infinity provides no evidence to
show that no excess RFR existed at the non-compliant areas on
September 3, 2003. It also does not show that it was meeting its
obligations under Section 1.1307(b)(3) to ensure that the public
was not able to access an area known to have had exceeded RFR MPE
in the past.
55Infinity Response at 11 - 12.
56RF Second Memorandum Opinion and Order, 13 FCC Rcd at 13523.
57Because we have determined that violating Section 1.1310 is a
public safety violation, a forfeiture of $10,000 was proposed for
each of the licensees. See also, A-O Broadcasting Corporation,
17 FCC Rcd 24182(2002).
58Telemundo Response at 6 - 8.
59See e.g., E. Schrodinger: About Heisenberg Uncertainty
Relation, 26 Bulg. J. Phys. 193 (1999).
60Telemundo Response at 6 - 7.
61Telemundo Response at 7. We note that the uncertainty factors
reported by Telemundo in its response indicate a plus/minus (+/-)
range. Despite this fact Telemundo assumes, in this hypothesis,
that the amount of RFR radiated by KHWY is always diminished,
rather than increased, by the uncertainty factor.
6247 C.F.R. § 1.1307(b)(3).
63As noted in the NAL at ¶ 9, n. 17, the FCC agents utilized an
FCC owned, calibrated RF meter with a calibrated probe. For the
particular meter and probe utilized on July 12, 2002, the
manufacturer and calibration specified deviations were applied.
As noted in Telemundo's Response, different probes and meters by
different manufacturers all have different deviation or
measurement uncertainty factors. See, e.g., Telemundo Response
at Exhibit 1, p. 10. Consequently, no universal uncertainty
factor exists for all situations.
64Licensees are cautioned not to assume that this particular
uncertainty factor will be made part of future RFR enforcement
actions. This enforcement action, like all enforcement actions,
is fact-specific and based on the circumstances known at the time
of the investigation.
65Telemundo Response at 8 n.18.
66Telemundo Response at 8 n.18.
67Infinity Response at 5 n 5.
68In the Matter of Webnet Communications, Inc., 18 FCC Rcd 6870,
6877 (2003).
69In re: Notices of Apparent Liability for Forfeitures of Emery
Telephone, 15 FCC Rcd 7181, 7186 (1999).
70New York State Dept. of Law v. F.C.C., 984 F.2d 1209, 1213
(D.C. Cir. 1993).
71Telemundo Response at 8 - 9. Telemundo states that ``KWHY's
own operations were the same on July 11 and 12, 2002, and
December 1, 2003.'' Telemundo Response at 8 n. 20.
72Telemundo also argues that the FCC's Media Bureau's precedent
confirms reliance on later, more accurate RF radiation studies in
lieu of the Commission's own methodology, citing Edwards W.
Hummers, Jr., Esquire, 18 FCC Rcd 22066 (MB 2003) (``Hummer
Letter''). Telemundo Response at 9. Telemundo mischaracterizes
the Hummer Letter. In neither the Hummer Letter, nor in the
present case, was there a convincing showing, or a finding, that
the measurements taken by FCC staff were inaccurate, or that they
were superceded by later-filed data.
73BRCT-19980731LM, filed July 31, 1998. The RF Statement was
filed on December 3, 1998. The renewal was granted on December
8, 1998.
74KWHY-TV EA Amendment at 4 - 5.
75KWHY-TV EA Amendment at 6 - 7.
76Telemundo Response at 10, citing RF Second Memorandum Opinion
and Order 12 FCC Rcd 13494, 13521(Applicants should be able to
calculate, based on frequency, power, and antenna configuration,
the distance from their transmitting antenna where signal
produces field levels equal to, or greater than, 5% of the
relevant RF exposure limit).
77OET Bulletin 65 at 36.
78OET Bulletin 65 at 44. This is consistent with Commission's
rules and precedent preferring measurements to calculations in
certain cases. See e.g., 47 C.F.R. § 73.153 (in determination of
interference, groundwave field strength measurements will take
precedence over theoretical values); In re Applications of
Benjamin F. Thomas and Roy A. Grove D.B.A. Greencastle
Broadcasting Co., 16 FCC 2d 923 (1969) (measurement data
indicating no prohibited overlap are to be preferred over the
calculations based on figure M-3 conductivities).
79Telemundo states that at no point between July 2002 and October
2003 did the Commission contact KWHY to warn it that it was
allegedly contributing to an ongoing safety violation. Telemundo
Response at 4 -5. As stated above, each of the stations that
engaged in the field measurements with the field agents on July
12, 2002, received an oral warning concerning the public access
to the site and an oral warning that publicly accessible areas
exceeded the RFR public MPE limits. Also, given the RF Statement
in the most recent KWHY-TV renewal, Telemundo should have already
been aware that RFR in excess of the public MPE limits was found
at parts of the Mt. Wilson site. In any event, as noted above,
no warning of a violation is required before an NAL is issued.
80We also note that, unlike Radio One, which made its
calculations six months prior to the field agents' investigation
and sought a good faith exception, Telemundo made its
calculations almost 17 months after the measurements were made by
the field agents.
81Telemundo Response at 11 - 12.
82Pursuant to Section 1.80 of our Rules, because we have
determined that violating Section 1.1310 is a public safety
violation, a forfeiture of $10,000 was proposed for each of the
licensees. See 47 C.F.R. § 1.80.
83Radio One Response at 3 - 4. Supplement of Radio One, filed
August 19, 2004 (``KKBT Study'').
84Radio One Response at 3.
85Radio One Response at 3 - 4.
86Radio One Response at 3 - 6.
87Radio One Response at 4 - 5. Radio One states that, given
effective radiated power (``ERP'') of each station and its height
of each station's antenna radiation center, ``[i]t would seem
much more probable that the signal the NAL attributes to KKBT(FM)
. . . actually is KKHT(FM)'signal.'' Radio One Response at 4.
88KKBT Study at 1. ``Both locations were on the street in front
of the Allcom building. One . . . in front of the KTLA-TV
building and the other in front of a power distribution pad just
west of the Post Office.''
89KKBT Study at 1. According to the study, ``the location in
front of the KTLA-TV the E-field average was 27% of the
controlled maximum permissible value and the H-field average was
25%. E-field averages at the location west of the Post Office
were 25% of the MPE level while the H-field level was 24%.'' The
study concludes that the ``sources of RF appear to be emanating
from the direction of the transmitting facilities to KBIG.'' The
study does not indicate if the KBIG auxiliary transmitter was in
use on that day.
90KKBT Study at 1. There is no information in the record that
Radio One advised any licensee at the Mt. Wilson site of its
finding that publicly accessible areas at the site exceeded the
public MPE.
9147 C.F.R. § 1.1307(b)(3)(ii).
92OET Bulletin 65 at 36.
93In order to ascertain KKBT's actual contribution on the day the
measurements were taken, Radio One needed only to ``power down''
the KKBT transmitter for a short period of time and make
measurements at the ``hot spots'' indicated in the study. The
KKBT Study does not indicate why Radio One did not do so,
particularly given Radio One's own finding that publicly
accessible areas on the Mt. Wilson site were exposed to RFR in
excess of the public MPE.
94File No. BRH-970730ZC, filed July 30, 1997. The RF Amendment
was filed on December 22, 1997. We note that at the time of the
filing, the call sign of KKBT(FM) was KIBB(FM) and that the call
sign for KHHT(FM) was KKBT(FM). See also Radio One Response at 6
n. 4. The renewal was granted on January 14, 1998.
95RF Amendment at 2. In the RF Amendment, the current KKBT(FM)
is referred to as KIBB(FM).
96RF Amendment at 3. Apparently, the Allcom building also housed
the Mt. Wilson Post Office.
97We note that since the grant of the KKBT(FM) license renewal in
1998, no applications for modification of KKBT(FM)'s facilities
have been granted by the Commission.
98We would not consider such a noncontemporaneous study to be a
basis to refute the field agents' measurements of July 11 and 12,
2002, in any case, because of the time elapsed between the two
studies and the continual changes made at the Mt. Wilson site by
the dozens of broadcast, and hundreds of non-broadcast entities
that use the site.
99NAL at ¶ 19.
100AMFM Response, Declaration of Jeff Littlejohn.
101Infinity Response, Telemundo Response, Radio One Response.
10247 C.F.R. § 1.1307(b)(3).
103Because we have found no reason to reduce or rescind the
forfeiture, we also deny Telemundo's request to dismiss the
requirement that the Mt. Wilson Licensees submit their plans to
ensure that the fences surrounding the area are shut and that the
gates are locked.
10447 U.S.C. § 504(a).
105See 47 C.F.R. § 1.1914.