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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
``''