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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Entravision Holdings, LLC ) File No. EB-04-TP-161
)
Licensee of Station WVEA-LP ) NAL/Acct. No. 200532700004
Tampa, Florida )
Facility ID # 3602 ) FRN 0001529627
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
5, 2005
By the District Director, Tampa Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Entravision Holdings, LLC
(``Entravision''), licensee of station WVEA-LP, 662-668 MHz, in
Tampa, Florida, 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 (``MPE'') 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 Entravision is apparently liable for forfeiture in the
amount of twenty-five thousand dollars ($25,000).
II. BACKGROUND
2. Entravision, licensee of station WVEA-LP, certified
compliance with the RFR MPE limits in its application for a minor
change to its licensed facility granted January 20, 2004.3 The
application contained an exhibit stating that station WVEA-LP
would create a worst case field of 0.0037 mw/cm2, which is 0.84%
of the 0.44 mw/cm2 general public limit, at the Park Tower Office
Building located at 400 North Tampa Street, Tampa, Florida. An
exhibit to the application stated that access to the transmitting
site would be restricted and properly marked with warning signs.
In addition, the exhibit stated that an agreement between and
among the other licensees at the Park Tower Office Building
containing appropriate measures to assure worker safety would be
in effect in the event that workers or authorized personnel enter
the restricted area.
3. On May 25, 2004, agents from the Commission's Tampa
Office of the Enforcement Bureau (``agent'' or ``agents'')
inspected the rooftop of the Park Tower Office Building. Access
to the main rooftop was restricted to individuals with special
keycards. Signs on the rooftop access doors stated that areas on
the rooftop exceed the Commission's public RFR limits. However,
the signs did not indicate which areas on the rooftop exceeded
the public or general population RFR limits. Using a calibrated
RFR meter, an agent found areas on the rooftop that exceeded the
general population limit by 75-200%. The agents continued to the
penthouse rooftop, which was restricted by an additional lock
controlled by the front desk and accessed without passing by the
warning signs on the main rooftop access doors. There were no
RFR warning signs found on the penthouse rooftop, penthouse
rooftop access door to the stairwell, inside the stairwell, or on
the hatch itself. While surveying the penthouse rooftop, an
agent, using a calibrated RFR meter, found that approximately 75%
of the penthouse rooftop exceeded the RFR MPE general population
limit. The agent also found an unmarked and un-posted area
exceeding the RFR MPE occupational limit within an 8-10 foot
radius of a tower containing a UHF TV antenna, later identified
as belonging to station WVEA-LP. The average power density level
for this area measured 1700% of the general population RFR MPE
limit or 340% of the RFR MPE occupational limit. The bottom of
the antenna was approximately three feet above the rooftop. The
agent determined that there was a second UHF-TV and two FM radio
stations all on separate towers located on the penthouse rooftop
at the time of inspection. The Park Tower Office Building's
chief engineer, who accompanied the agents on this inspection,
stated he and his personnel were not aware of areas exceeding the
general population and occupational limits on the penthouse
rooftop pointed out to him by the agent. The building's chief
engineer stated that he and his personnel access this rooftop on
a fairly regular basis to inspect it for maintenance and to
conduct roofing repairs. He also stated that neither he nor any
of his maintenance crew or subcontractors had received any
training with respect to RFR hazards.
4. On June 18, 2004, an agent returned to the penthouse
rooftop of the Park Tower Office Building, gathered more
information, and made additional measurements. The agent found
power density levels in excess of the RFR MPE general population
and occupational limits, similar to those detected on May 25,
2004. There were no RFR warning signs posted in the stairwell
that accessed the penthouse rooftop or on the penthouse rooftop
itself.
5. On July 1, 2004, the WVEA-LP station engineer
accompanied agents on their inspection of the penthouse rooftop.
Before conducting any testing, the station engineer stated he
knew areas near his antenna exceeded the occupational limits and
that the area should have been posted with warning signs to alert
those accessing the roof of the hazard. To determine if
Entravision was responsible for the high fields in the area
around station WVEA-LP's antenna, the station engineer was asked
to take the station off the air. With station WVEA-LP on the
air, the fields around the antenna measured 1,865% of the general
population limit or 373% of the occupational limit. After
station WVEA-LP was taken off the air, the fields measured 110%
of the general population limit or 22% of the occupational limit.
Therefore, station WVEA-LP was causing 1,755% of the general
population limit, 351% of the occupational limit, or 7.75 mW/cm2.
The agents verbally warned the station engineer of this RFR
violation. The agent informed the station engineer that to
comply with the RFR requirements the station should post warning
signs in the stairwell entrance and the rooftop to identify the
areas exceeding the RFR limits, especially those exceeding the
occupational limit. The agent also suggested that the station
work with the building's chief engineer to restrict access to the
specific area exceeding the occupational limits and only allow
those having RFR training to access the area. Finally, the agent
suggested that, in addition to the required RFR training, the
station could offer building workers, who access the rooftop,
individual RFR warning devices.
6. On July 16, 2004, agents conducted another inspection
of the penthouse rooftop. Entravision placed a small, framed
caution sign in the stairwell to the penthouse roof hatch that
listed contact information for the station engineer. Entravision
marked with yellow paint the penthouse rooftop area exceeding the
occupational RFR MPE limit, but did not place warning signs on
the penthouse rooftop itself. Agents conducted measurements
similar to those conducted on July 1 with the four licensees
located at the site.4 When all four stations were on the air,
the overall field was 1,950% of the general population limit and
390% of the occupational limit. On/off measurements were then
conducted with each of the four stations, which found that
station WVEA-LP was solely causing 1850% of the general
population limit, 370% of the occupational limit, or 8.2 mw/cm2.5
The station engineer for WVEA-LP was warned that the sign posted
in the stairwell was inadequate due to its size and its poor
visibility in the darkened stairwell. The agents again explained
to the station engineer the RFR requirements.
7. On July 20, 2004, an agent contacted the WVEA-LP
station engineer to discuss the July 16th inspection. The
station engineer stated he had not yet posted a sign on the
rooftop or spoken with the building's chief engineer. The agent
reminded the station engineer of the station's responsibility to
comply with the Commission's RFR requirements.
8. On August 17, 2004, an agent re-inspected the penthouse
rooftop of the Park Tower Office Building. There was no sign
posted on the penthouse rooftop as requested on July 1, 16, and
20 or on the tower itself as requested on July 16, and 20. The
building's chief engineer stated the WVEA-LP engineer spoke to
him regarding the yellow lines painted on the roof, but had not
discussed any policy to limit rooftop access only to those with
RFR training.
9. On September 30, 2004, agents re-inspected the
penthouse rooftop. The agents found power density levels in
excess of the RFR MPE general population and occupational limits,
similar to those previously detected. Entravision had placed a
sign on its tower that cautioned workers that the yellow striped
area exceeds safe occupational levels. The sign, however, did
not list any station contact information.
10. On October 26, 2004, the building's chief engineer
stated that Entravision had not yet contacted him to restrict
access to the penthouse rooftop only to workers who had received
RFR training. On November 5, 2004, the building's chief engineer
contacted the Tampa office and stated that station WVEA-LP told
him that the transmitter power had been reduced and the penthouse
rooftop was now well below the occupational limits. Agents made
measurements the same day and confirmed there were no areas on
the penthouse rooftop that exceeded the occupational/controlled
RFR MPE limit. There were areas, however, that were still well
above the general population/uncontrolled limits.
III. DISCUSSION
11. Section 1.1310 of the Rules requires licensees to
comply with occupational and general population MPE limits for
electric and magnetic field strength and power density for
transmitters operating at frequencies from 300 kHz to 100 GHz.6
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 Table 1 in Section 1.1310 of the
Rules provides that the general population/uncontrolled RFR
maximum permissible exposure limit given in terms of mw/cm2 for a
station operating in the frequency range of 300 MHz to 1500 MHz
is determined by the calculation of f/1500 where f is the
frequency in MHz.8 Because station WVEA-LP is licensed to
operate on 662-668 MHz, its general population limit is 0.44
mW/cm2. Table 1 in Section 1.1310 of the Rules provides that the
occupational/controlled RFR maximum permissible exposure limit
given in terms of mw/cm2 for a station operating in the frequency
range of 300 MHz to 1500 MHz is determined by the calculation of
f/300 where f is the frequency in MHz. 9 Because station WVEA-LP
is licensed to operate on 662-668 MHz, its occupational limit is
2.2 mW/cm2. Licensees bear the responsibility to restrict access
to areas that exceed the RFR MPE 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 worker or public
access to the impacted area.10
12. According to the building's chief engineer, none of his
workers, who accessed the penthouse rooftop on a fairly regular
basis in the course of their duties, were aware of the areas that
exceeded the general population RFR MPE limit on the penthouse
rooftop. In addition, the building's chief engineer stated none
of these workers received any RFR training. Moreover, the areas
on the penthouse rooftop that exceeded the general population RFR
MPE limit were not marked in any way. Although a generic warning
sign was placed by the entrance to the main rooftop, this sign
could not be seen by workers approaching the penthouse rooftop
and was insufficient to warn workers of the hazards on the
penthouse rooftop.11 Thus, these workers were ``exposed as a
consequence of their employment, [were not] fully aware of the
potential for exposure, and [could] not exercise control over
their exposure.''12 Therefore, even though access was controlled
by locks, the penthouse rooftop was subject to the Commission's
general population limits.13
13. On May 25, June 18, July 1, July 16, and September 30,
2004, agents determined that approximately 75% of the penthouse
rooftop exceeded the general population RFR MPE limit. The
agents also found that Entravision's transmitter for station
WVEA-LP produced power density levels that were as much as 1850%
of its general population limit. Accordingly, Entravision was
responsible for ensuring compliance with the RFR Rules.
Entravision, however, failed to limit worker access to the areas
on the penthouse rooftop that exceeded the general population
limit. Workers were able to gain entrance to the penthouse
rooftop on a fairly regular basis and had complete access to all
areas on the penthouse rooftop, including the area that was
1,950% of the general population limit. Entravision also did not
post any RFR warning signs on the penthouse rooftop or its
entrance and did not contact the building's chief engineer about
the hazard prior to the agents' inspection. Thus, Entravision
failed to provide workers knowledge of and control over their
exposure. Based on the evidence, we find that Entravision
produced power density levels in excess of the general population
RFR MPE limit and failed to warn adequately workers of the areas
that exceeded the general population RFR MPE limit in apparent
willful14 and repeated15 violation of Section 1.1310 of the
Rules.
14. On May 25, June 18, July 1, July 16, and September 30,
2004, agents determined that certain areas of the penthouse
rooftop exceeded both the general population and
occupational/controlled RFR MPE limits. Specifically, the area
within an 8-10 foot radius around station WVEA-LP's tower
measured 390% of the occupational/controlled RFR MPE limit.
Agents determined that Entravision's transmitter produced power
density levels that were 370% of its occupational limit in this
area. However, Entravision did not in any way highlight, mark,
or limit access to the areas on the penthouse rooftop that
exceeded the occupational limit or alert the building engineer of
the RF levels, prior to the Commission's July 1st inspection and
warning. Because the workers had no knowledge of the RFR levels
on the penthouse rooftop, they did not have the ability to
control or limit their exposure. Although Entravision
highlighted in yellow the affected areas by July 16, it did not
post an obvious RFR warning sign on the penthouse rooftop until
after August 17, 2004, more than a month after their first oral
warning. Thus, we find that Entravision also apparently
willfully and repeatedly violated Section 1.1310 of the Rules by
producing power density levels in excess of its occupational
limit and failing to warn adequately workers of the RFR hazard.
15. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')16 does
not specify a base forfeiture for violation of the RFR maximum
permissible exposure limits in Section 1.1310.17 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.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.19
16. We are troubled with Entravision's apparent disregard
for the Commission's RFR requirements. Areas on the penthouse
rooftop exceeded the general population/uncontrolled limit by
over 1,850 percent and the occupational/controlled RFR MPE limit
by over 290 percent. Entravision's station engineer admitted
that he was aware that areas exceeded the occupational limits and
should have been marked with warning signs, but he did not inform
the building's engineer or workers of this safety hazard and did
not in any way highlight, mark, or limit access to the areas
prior to the agents' inspection. Even though it painted the
areas exceeding the occupational level with yellow lines by July
16, 2004, Entravision waited more than 30 days after receiving an
oral warning on July 1, 2004 before alerting the building's chief
engineer of the affected areas and posting an obvious RFR warning
sign on its tower. Entravision failed to correct these
violations even though it was aware of the RFR requirements. In
its application granted January 20, 2004, Entravision certified
that it was compliant with the RFR Rules. Moreover, it
specifically asserted in an exhibit to its application that the
transmitting site would be ``appropriately marked with warning
signs'' and that an agreement would be in effect to ensure worker
safety with respect to RFR exposure. Accordingly, we believe a
significant upward adjustment of the base forfeiture amount is
warranted, even though Entravision has since come into
compliance.20 Applying the Forfeiture Policy Statement, Section
1.80, and statutory factors to the instant case, we conclude that
it is appropriate to increase the base forfeiture amount for
Entravision's apparent violations. Therefore, we find
Entravision apparently liable for a forfeiture in the amount of
$25,000.
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended,21 and
Sections 0.111, 0.311, and 1.80 of the Commission's Rules,22
Entravision Holdings, LLC, licensee of station WVEA-LP, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for willful and
repeated violation of Section 1.1310 of the Rules by failing to
comply with general population and occupational radio frequency
radiation maximum permissible exposure limits.
18. 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, Entravision
Holdings, LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
19. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Payment by check or money order may
be mailed to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago, IL
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. The payment
should note NAL/Acct. No. 200532700004, and FRN 0001529627.
Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and Receivable
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.23
20. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Tampa Office, Suite 1215, 2203 North Lois Avenue, Tampa,
FL 33607-2356 within thirty days of the release date of this
NAL, and must include the NAL/Acct. No. referenced in the
caption.
21. 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.
22. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by Certified Mail, Return Receipt Requested, and regular
mail, to Entravision Holdings, LLC, Suite 6000 West, 2425 Olympic
Boulevard, Santa Monica, CA 90404.
FEDERAL COMMUNICATIONS
COMMISSION
Ralph Barlow
District Director
Tampa Office
Enforcement Bureau
cc: WVEA-LP
_________________________
147 C.F.R. § 1.1310. See also Guidelines for Evaluating the
Environmental Effects of Radiofrequency Radiation, Report and
Order, ET Docket No. 93-62, 11 FCC Rcd 15123 (1996), recon.
granted in part, First Memorandum Opinion and Order, 11 FCC Rcd
17512 (1996), recon. granted in part, Second Memorandum Opinion
and Order and Notice of Proposed Rulemaking, 12 FCC Rcd 13494
(1997) (``Guidelines'').
247 U.S.C. § 503(b).
3All broadcast licensees were required to come into compliance
with RFR MPE limits as of September 1, 2000 or file an
Environmental Assessment. See Guidelines, Second Memorandum
Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd
at 13540; 47 C.F.R. § 1.1307(b)(5). In addition, all broadcast
licensees must demonstrate compliance with the RFR MPE limits, or
file an Environmental Assessment and undergo environmental review
by Commission staff, when filing for an initial construction
permit, license, renewal or modification of an existing license.
See Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13538; 47 C.F.R. § 1.1307(b).
4Another station's transmitter was found to produce power density
levels that exceeded 5% of the power density exposure limit
applicable to its particular transmitter. This station is also
responsible for ensuring the penthouse rooftop's compliance with
the RFR limits. See 47 C.F.R. § 1.1307(b)(3).
5Although the agents stood in the same general area on the
penthouse rooftop, the measurements taken on May 25, June 18,
July 1 and July 16 differed slightly because the measuring spots
were not exactly identical.
6See 47 C.F.R. § 1.1310, Table 1.
7See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.
8The 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. See 47 C.F.R. §
1.1310, Note 2 to Table 1.
9The 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. 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. See 47 C.F.R. § 1.1310, Note 1 to Table
1.
1047 C.F.R. §§ 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional
guidance is provided in Office of Engineering and Technology,
Evaluating Compliance with FCC Guidelines for Human Exposure to
Radiofrequency Electromagnetic Fields (1997) (``OET Bulletin
65'').
11See Americom Las Vegas Limited Partnership, 19 FCC Rcd 9643
(Enf. Bur. 2004).
1247 C.F.R. § 1.1310, Note 2 to Table 1.
13See id. See also A-O Broadcasting Corporation, 17 FCC Rcd
24184 (2002).
14Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
15The term ``repeated,'' when used with reference to the
commission or omission of any act, ``means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.'' 47 U.S.C. §
312(f)(2).
16Forfeiture 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).
17The fact that the Forfeiture Policy Statement does not specify
a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that ``... any
omission of a specific rule violation from the ... [forfeiture
guidelines] ... should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant. Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission retains
the discretion, moreover, to depart from the Forfeiture Policy
Statement and issue forfeitures on a case?by?case basis, under
its general forfeiture authority contained in Section 503 of the
Act. Id.
18A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).
1947 U.S.C. § 503(b)(2)(D).
20See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866
(2002) (base forfeiture amount tripled); American Tower
Corporation, 16 FCC Rcd 1282 (2002) (base forfeiture amount
doubled).
2147 U.S.C. § 503(b).
2247 C.F.R. §§ 0.111, 0.311, 1.80 and 1.1310.
23See 47 C.F.R. § 1.1914.