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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
Capstar TX Limited Partnership   )           File No. EB-03-HL-092
                                 )
Licensee of Station KIKI-FM      )      NAL/Acct. No. 200432860004
Honolulu, Hawaii                 )
Facility ID # 34592              )                  FRN 0003474947

                                

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                             Released:  September 
22, 2004
                                             
By the Resident Agent, Honolulu Office, Western Region, 
Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we find that Capstar TX Limited Partnership 
(``Capstar''), licensee of station KIKI-FM, 93.9 MHz, in 
Honolulu, Hawaii, 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 Capstar 
is apparently liable for forfeiture in the amount of ten thousand 
dollars ($10,000).                                               

II.  BACKGROUND

     2.   The RFR Rules.  Section 1.1310 of the Rules defines the 
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.3  These MPE 
limits 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.4  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.5  Licensees can demonstrate compliance by restricting 
public access to areas where RFR exceeds the public MPE limits.6 

     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.''7  Further, the FCC's 
rules require that if the MPE limits are exceeded in an 
accessible area due to the emissions of multiple 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.''8  Pursuant to Table 1 in Section 1.1310 
of the Rules, 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/cm2.9

     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 RFR MPE limits, or to file an 
Environmental Assessment and undergo environmental review by 
Commission staff.10  In addition, all existing licensees, 
including all licensees at multiple transmitter sites, were 
required to come into compliance with the RFR MPE limits by 
September 1, 2000, or to file an Environmental Assessment.11

     5.   On September 25, 2003, a field agent from the 
Commission's Honolulu Resident Agent Office conducted RFR 
measurements at an antenna tower structure located at 1095 
Dillingham Boulevard, Honolulu, Hawaii.12  The tower is located 
on the corner of Dillingham Boulevard and Kokea Street.  The base 
of the tower is encircled by a cinder block wall with a small 
wooden fence on top, in the middle of the Kokea Center strip mall 
parking lot.13  A large sign reading ``Caution - High Level Radio 
Frequency Energy Area - No Trespassing'' was posted on the front 
side of the wooden fence above the entry door of the wall.  The 
parking lot is accessible by the public at all times.  

     6.   The field agent, using a calibrated RFR meter, 
identified a 10 foot by 5 foot area exceeding the RFR MPE public 
limits, in the adjacent area just outside the tower fencing.  The 
area was located approximately three feet south of the tower 
fence between two large metal trash bins.  The overall power 
density level measured 0.254 mW/cm2 or 127% of the RFR MPE public 
limits.  The agent determined that there were five radio stations 
operating on the tower, four AM stations, KSSK(AM), KHBZ(AM), 
KHVH(AM) and KHRA(MA), and one FM station, KIKI-FM, at the time 
of investigation.14  The field agent advised Capstar's local 
station engineer, on September 25, 2003, of the apparent 
existence of RFR exceeding the public limits in a public area 
outside the tower fence.  Arrangements were later made with the 
licensees to conduct further measurements and to determine the 
RFR contributions from each of the individual radio station 
transmitters.

     7.   On November 20, 2003, field agents from the Honolulu 
Field Office returned to the site.  With the cooperation of all 
the broadcasters on the tower and the assistance of KIKI-FM 
engineers, the field agents conducted additional RFR measurements 
in the 50 square foot area identified on September 25, 2003, as 
exceeding the public RFR MPE limits.  The field agents made RFR 
measurements with all stations transmitting to establish the 
overall power density level.15  The field agents then requested 
each station on the tower to temporarily and sequentially power 
down its transmitter.  The field agents made four spatially 
averaged RFR power density measurements while each of the five 
broadcast stations transmitters 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% of its individual MPE limit at the identified area.16    

     8.   The measurements taken by the agents on November 20, 
2003, indicated an RFR field in the publicly accessible area 
between the tower and two large metal trash bins that now 
significantly exceeded the FCC's MPE limits for the general 
public.  The overall RFR power density measurement at the site 
exceeded the MPE public limit by 85.6% with all stations in 
operation.17  Based on the measurements and further calculations, 
the power density level produced by KIKI-FM was 0.36 mW/cm2, 
which is equivalent to an RFR power density measurement exceeding 
the MPE public limit by 83%.  KIKI-FM's RFR contribution was 98% 
of the total field in this same publicly accessible area at the 
site, based on these measurements and further calculations. 

     9.   In light of the November 20, 2003 measurements showing 
that KIKI-FM was the source of the RFR level exceeding the public 
MPE limits, the KIKI-FM engineers advised the FCC field agents on 
November 20, 2003, that they wanted to ascertain the maximum 
power level KIKI-FM could operate to be in compliance with the 
MPE public limits.  At the request of the KIKI-FM engineers, the 
agents repeated the RFR measurements at the site on November 20, 
2003, as KIKI-FM sequentially reduced the transmitter output 
power to 90%, 70%, 60% and 50% of the authorized power of 100 kW.  
RFR levels were found to be in compliance with public MPE limits 
only when KIKI-FM was operating at a reduced power level of 50%, 
or 50 kW.  The KIKI-FM engineers stated that KIKI-FM would remain 
at 50 kW until they could make repairs to bring the site into 
compliance within the MPE public limits.18  

     10.  On January 15, 2004, Capstar filed a request with the 
Commission for a special temporary authority (``STA'') to operate 
at reduced power while taking the necessary steps to address RFR 
concerns at the tower.19  Capstar stated in the STA request that 
an isocoupler on the tower was malfunctioning, causing RF fields 
outside the tower fence that exceed the public MPE for RF with 
the station operating at full authorized power.  On May 27, 2004, 
the KIKI-FM engineer contacted the Commission's Honolulu Resident 
Agent Office and advised that they performed the necessary 
repairs and hired a consultant to conduct measurements to ensure 
they were now at 58% of the MPE public limits while operating at 
full power.  On June 7, 2004, the Honolulu field agents again 
performed RFR measurements, this time finding no publicly 
accessible areas exceeding the RFR MPE when KIKI-FM operated at 
full authorized power.20      

III.       DISCUSSION

     11.  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.21  The term 
``repeated'' means the commission or omission of such act more 
than once or for more than one day.22

     12.  Section 1.1310 of the Rules requires licensees to 
comply with RFR exposure limits.23 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.  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.''24

     13.  On September 25, 2003, Commission field agents found a 
publicly accessible area exceeding the public RFR MPE by more 
than 25% at the 1095 Dillingham Boulevard broadcast tower site.  
The field agents notified Capstar, the licensee of four of the 
five stations on the tower of the potential public safety issue.  
Although Capstar was willing to meet with the field agents at a 
later date to take individual measurements of all of the stations 
on the tower, Capstar apparently took no action in response to 
the field agents' warning, that a publicly accessible area 
exceeding the public MPE limits existed around the outside of the 
tower fence.  On November 20, 2003, Commission agents found KIKI-
FM producing approximately 98% of an RF field in a publicly 
accessible area that exceeded the public RFR MPE limits by up to 
85.6%.  Capstar was required to ensure that by September 1, 2000, 
their station was in compliance with the RFR MPE limits adopted 
by the Commission in 1996, or file an Environmental Assessment.  
Capstar also bears the 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.25    

     14.  The area found to exceed the public MPE limits was not 
enclosed within protective fencing.  Several small businesses 
were located within 100 feet from the noncompliant area.  On both 
days, no RFR warning signs were found in the immediate vicinity 
demarcating the area exceeding the Commission's public RFR MPE 
limits.  Although a fence did surround the base of the broadcast 
tower and did have an RFR warning sign, the area where RFR was 
found to exceed the public MPE limits was not encompassed within 
a fence or properly marked with RFR warning signs.  In addition, 
Commission field agents observed that the area was accessible to 
the general public when disposing of their trash in the trash 
bins located outside the fenced area.  The overall lack of 
controlled access to the area and the unmarked and unrestricted 
access observed by the Commission agents at the time of the 
inspections made areas near the trash bins, including the area 
found to exceed the limits, publicly accessible and thus held to 
the Commission's public MPE limits.  We find that Capstar did not 
restrict public access to an area where RFR exceeded the public 
MPE limits.   

     15.  Based on the evidence, we find that the Capstar 
willfully and repeatedly violated Section 1.1310 of the Rules by 
exceeding the RFR MPE limits for the general public in a publicly 
accessible area and by failing to adequately take measures to 
prevent the public from accessing an area that exceeded the RFR 
exposure limits.  

     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'')26 does 
not specify a base forfeiture for violation of the RFR maximum 
permissible exposure limits in Section 1.1310.27  However, the 
Commission has determined that an appropriate base forfeiture 
amount for violation of the RFR MPE limits is $10,000, reflecting 
the public safety nature of the rules.28  

     17.  We propose the $10,000 base forfeiture amount for KIKI-
FM, which produced RFR power density levels in excess of the 
public MPE and was responsible for 98% of the RFR level exceeding 
the public MPE in a multi-emitter environment.  In this case, 
KIKI-FM apparently failed to comply with Section 1.1310 of the 
Rules, produced power density levels that exceeded the public MPE 
limits, and failed to take measures to adequately prevent the 
public from accessing areas that exceeded the RFR exposure 
limits.  Consequently, it is appropriate to hold Capstar 
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, 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.29  While Capstar ultimately reduced the RFR 
levels produced by KIKI-FM to a permissible level, we are 
troubled that such action was not taken until after the second 
warning was given to Capstar by the field agents concerning the 
excessive RFR amounts found in a publicly accessible area near 
the Capstar tower.  During those months the RFR produced by KIKI-
FM, in a publicly accessible area, increased to a level that 
exceeded the Commission's public RFR MPE limits by 83%. We 
believe that the seriousness of the safety violation warrants the 
proposed forfeiture amount of $10,000.  Accordingly, applying the 
Forfeiture Policy Statement, Section 1.80, and statutory factors 
to the instant case, we conclude that Capstar, licensee of KIKI-
FM, is apparently liable for a $10,000 forfeiture.

IV.        ORDERING CLAUSES

     19.  Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and 
Sections 0.111, 0.311, and 1.80 of the Commission's Rules, 
Capstar TX Limited Partnership, licensee of station KIKI-FM is 
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in 
the amount of ten thousand dollars ($10,000) for violations of 
Section 1.1310 of the Rules. 30

     20.  IT IS FURTHER ORDERED that, pursuant to Section 1.80 of 
the Commission's Rules, within thirty days of the release date of 
this Notice of Apparent Liability for Forfeiture, Capstar TX 
Limited Partnership shall pay the full amount of the proposed 
forfeiture or shall file a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     21.  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. 

     22.  The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Western Region, 
Honolulu Resident Agent Office, P.O. Box 971030, Waipahu, HI  
96797-1030, and must include the NAL/Acct. No. referenced in the 
caption.

     23.  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.

     24.  Requests for payment of the full amount of this Notice 
of Apparent Liability for Forfeiture under an installment plan 
should be sent to: Chief, Revenue and Receivable Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.31

     25.  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 address listed above for the 
filing of the response.  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.

     26.  IT IS FURTHER ORDERED THAT a copy of this Notice of 
Apparent Liability for Forfeiture shall be sent by Certified 
Mail, Return Receipt Requested, and regular mail, to Capstar TX 
Limited Partnership, 2625 S. Memorial Drive, Suite A, Tulsa, OK 
74129.



                                FEDERAL COMMUNICATIONS 
COMMISSION




                                Ryan Hagihara
                                Resident Agent
                                Honolulu Office
                                Western Region
                                Enforcement Bureau


     Enclosure:  FCC List of Small Entities


Cc:    Capstar TX Limited Partnership 
       Clear Channel Communications
       Licensee of Station KIKI-FM
       650 Iwilei Road, Suite 400
       Honolulu, Hawaii  96817 
``''