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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Visionary Related Entertainment, ) File Number:
L.L.C. ) EB-04-HL-049
)
Licensee of FM Broadcast Station ) NAL/Acct.
KAOI-FM ) No. 200532860001
Wailuku, Hawaii FRN: 0005410295
Facility ID #70375
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February
4, 2005
By the Resident Agent, Honolulu Resident Agent Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Visionary Related Entertainment, L.L.C.
(``Visionary''), licensee of FM Broadcast station KAOI-FM, in
Wailuku, 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 Visionary is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000). We also consider a
complaint filed by D.T. Fleming Arboretum and Martha Vockrodt-
Moran against Visionary.
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 on towers 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 Table 1 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/cm2.8 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.9 In addition, all
existing licensees were required to come into compliance with the
new RFR MPE limits by September 1, 2000, or to file an
Environmental Assessment.10
4. On July 19, 2004, Visionary filed an application to
modify KAOI-FM's antenna height from the licensed height of 25
meters AGL to 14 meters AGL.11 Visionary also proposed modifying
KAOI-FM's licensed effective radiated power from 100 kW to 55 kW.
This application was dismissed on November 18, 2004.12 As part
of the application, Visionary indicated that it was unable to
certify that ``the facility will not have a significant
environmental impact and complies with the maximum permissible
radiofrequency electromagnetic exposure limits for controlled and
uncontrolled environments.''13 Visionary attached a ``detailed
explanation of the RFR situation at the KAOI-FM site'' as part of
the application. In the explanation, Visionary stated that the
current antenna system, operating at 100 kW, at a height of 14
meters above ground, ``produces a maximum field intensity of
4614.37 microwatts per squared centimeter at a distance of 2.8
meters from the base of the tower.''14
5. On September 7, 2004, a Honolulu agent spoke to the
President of Visionary, and requested that KAOI-FM be made
available for inspection on September 8, 2004. The Honolulu
agent was later informed by the station engineer that KAOI-FM was
running at reduced power due to transmitter technical problems.
On October 14, 2004, the Honolulu Office issued a Letter of
Inquiry (``LOI'') to Visionary regarding reduced power operations
throughout calendar year 2004. Visionary's October 26, 2004
response delineated a series of eight separate instances between
January and October of 2004 when equipment issues resulted in
reduced power operations. In a supplemental November 2, 2004
response to the LOI, Visionary stated that the station had been
operating at full licensed power levels since October 29, 2004,
and pledged to notify the Honolulu Office of any further
problems.
6. On October 20, 2004, Martha Vockrodt-Moran, along
with the D.T. Fleming Arboretum, filed a complaint with the
Commission's Enforcement Bureau requesting that the Bureau
``order KAOI-FM to cease transmitting because it operations pose
a significant threat to health and safety.''15 Specifically, the
complaint alleged that ``for the past fourteen years, [Visionary]
has operated KAOI in violation of the RF exposure rules'' and
that the property adjacent to the KAOI transmitter site ``is
regularly used by Arboretum workers, residents, children, campers
and hikers.''16 Visionary filed a Motion to Dismiss the
Complaint on December 14, 2004.17 Vockrodt-Moran and the
Arboretum filed a response to the Motion to Dismiss on December
23, 2004.18
7. Honolulu agents inspected the KAOI-FM facility on
November 17, 2004, accompanied by KAOI-FM station engineers, as
well as a broadcast consultant. KAOI-FM is authorized to operate
with 100 kW ERP. The KAOI-FM antenna system is a Jampro JHPC-8,
eight bay circular ``Double V'' antenna, mounted on a 25 meter/83
foot tall wooden pole at the edge of a cinder cone building
overlooking a steep hilltop. A roadway passes within 30 feet of
the KAOI-FM antenna. The roadway is gated on both entrances to
the antenna. There is a locked gate on the access road north of
the transmitter site that bars routine public vehicular access to
the entire area. A portion of the D.T. Fleming Arboretum
property, Ulupalakua, Maui, is adjacent to the site, and
Arboretum visitors and maintenance personnel are able to access
the area. A second gate, bordering on Arboretum property and
limiting access between the transmitter site area and the
Arboretum property, is approximately 35 to 42 feet south of the
antenna. A cell tower with multiple antennas is located
approximately 100 feet east of the KAOI-FM antenna site.
Although vehicular access to the antenna site is restricted by
means of a locked gate, pedestrian access is not restricted, and
there is a private residence past the locked gate.
8. The agents observed no fence restricting public access
to the antenna support pole, and no RFR warning signs posted.
The KAOI-FM transmitter was running at a power output of 96,732
watts, a representative level in view of the mountaintop
commercial power fluctuations. The agents employed a personal RF
monitor to initially identify a seventy foot long, twenty foot
wide area in front of the transmitter building with potential
high RFR levels.19 Measurements were conducted at four
locations using a calibrated meter. The measurements employed a
spatial averaging measurement technique, where measurements in
four quadrants are averaged to give a representative reading for
each location.20 Public RFR MPE levels were exceeded in a twenty
foot by ten foot rectangular area in front of the antenna support
pole. Measurements indicated RFR levels of 1.2 mW/cm2 or 609% of
the public RFR MPE levels in areas within three feet of the
pole.21 Agents repeated the measurements at the same four
designated locations with the transmitter running at a reduced
output power of 56,350 watts. Measurements indicated RFR levels
of 0.48 mW/cm2 or 240% of the public RFR MPE levels in the areas
of the immediate vicinity of the support pole. At the conclusion
of the inspection, the station engineers reduced the transmitter
power and stated that the station would operate at a reduced
power level until the RFR issue was resolved. The station
engineers informed the agents that the station intended to
install fencing to restrict public access, and also intended to
submit a request for special temporary authority (``STA'') to
operate at reduced power levels.22 A review of Commission
records reveals that no STA request has been filed regarding
KAOI-FM during the last twelve months.23
III. DISCUSSION
III.A. Visionary's Apparent Violation of Section 1.1310
of the Rules
9. 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.24 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.25
10. Section 1.1310 of the Rules requires licensees to
comply with RFR exposure limits.26 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.
11. As part of the July 2004 Application, filed on July 19,
2004, Visionary was unable to certify that the facility complied
with the maximum permissible radiofrequency electromagnetic
exposure limits for controlled and uncontrolled environments, and
attached a detailed explanation of the RFR situation at the KAOI-
FM site as part of the application. Specifically, Visionary
predicted that its antenna system produced a maximum field
intensity of 4.6 mW/cm2 within nine feet of the base of the
tower. According to the supplemental November 2, 2004, response
filed by Visionary to a Honolulu Office LOI, KAOI-FM had been at
``normal power'' of approximately 100 kW since October 29, 2004.
On November 17, 2004, Honolulu agents took actual field
measurements and found publicly accessible areas measuring 1.2
mW/cm2 or 600% of the public RFR MPE limits within three feet of
the KAOI-FM antenna tower. The area found to exceed the public
MPE limits, which included the KAOI-FM antenna support pole, was
not enclosed within protective fencing, and no RFR warning signs
were posted. As of December 14, 2004, Visionary indicated that
it was in the process of building a four foot fence coming out
from the tower.
12. Although vehicular access to the site was restricted by
means of a locked gate, pedestrian access was relatively
unrestricted, and there is a private residence past the locked
gate. In addition, D.T. Fleming Arboretum visitors and
maintenance personnel can access the area. We therefore find
that Visionary did not restrict public access to an area where
RFR exceeded the public MPE limits between October 29, 2004 and
November 17, 2004. Visionary 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
within the RFR exposure limits prior to public or worker access
to the impacted area.27 Visionary apparently took no action to
comply with public RFR MPE limits within this time span, although
it is evident from their July 2004 Application that they were
aware of their responsibilities.28 Visionary acknowledges in the
July 2004 Application that the RFR level in close proximity to
the antenna site exceeded the public MPE, therefore, Visionary's
violation is willful. The violation occurred on more than one
day, therefore, it is repeated.
13. Based on the evidence before us, we find that Visionary
apparently willfully and repeatedly violated Section 1.1310 of
the Rules29 by exceeding the public RFR MPE limits 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.
14. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')30 does
not specify a base forfeiture for violation of the RFR maximum
permissible exposure limits in Section 1.1310.31 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.32
15. We propose the $10,000 base forfeiture amount for
Visionary, who apparently failed to comply with Section 1.1310 of
the Rules, failed to take measures to adequately prevent the
public from accessing areas that exceeded the RFR exposure
limits, and produced power density levels exceeding the public
MPE limits. Consequently, it is appropriate to hold Visionary
apparently liable for a $10,000 forfeiture.
16. In assessing the 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 violations, and with respect to the
violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require.33 Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors to the instant case, we conclude
that Visionary is apparently liable for a $10,000 forfeiture.
17. We also direct Visionary to file, within 30 days of
release of this NAL, a sworn statement describing: 1) what, if
any, steps it took between July, 2004, and November, 2004, to
ensure compliance with the Commission's RFR Rules at the KAOI-FM
transmitter site; 2) what, if any, steps it has taken since the
Honolulu agents' inspection in November, 2004, to ensure
compliance with the Commission's RFR Rules at the site; and 3)
its current plan to ensure compliance with the Commission's RFR
Rules at the site. The statement must be filed with the response
to this NAL, or separately if Visionary does not respond and pays
the proposed forfeiture. Further, we direct Visionary to place a
copy of this plan in the KAOI-FM Public Inspection File.
III.B. Complaint of D.T. Fleming Arboretum and Martha
Vockrodt-Moran
18. The Complaint filed by the Arboretum and Vockrodt-Moran
(``Complainants'') requests that the ``Enforcement Bureau order
KAOI to immediately cease operation until the Bureau has
determined the facts and circumstances surrounding the radiation
exposure to humans in close proximity to the antenna . . . .''34
In its Motion to Dismiss the Complaint, Visionary states that the
Complaint contains substantially the same allegations as an
informal objection filed by the Arboretum and Vockrodt-Moran
against Visionary's July 2004 Application, and that it should be
dismissed to avoid duplicative proceedings.35 In their Response
to the Motion to Dismiss, the Complainants argue that the
pleadings are not duplicative and that the Bureau should order
Visionary to reduce power, cease operations, or at ``the very
least'' give Visionary ``a substantial fine.''36
19. We will consider the Complainants' Complaint as an
informal request for action pursuant to Section 1.41 of the
Commission's Rules.37 The investigation that culminated in this
NAL began prior to the filing of the Complaint. However, at
least one of the remedies requested by the Complainants, that of
a substantial fine, is being proposed against Visionary. This
remedy is consistent with our proceedings under the RFR Rules.38
In addition, we are requiring Visionary to file a plan detailing
its efforts to comply with the RFR Rules, and to place a copy of
the plan in the KAOI-FM Public Inspection File, so that members
of the public, like the Complainants, may view it. Because we
have already begun enforcement action against Visionary for its
apparent violation of the Commission's RFR Rules, we dismiss the
Complaint.
IV. ORDERING CLAUSES
20. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules,
Visionary Related Entertainment L.L.C. 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.39
21. 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, Visionary
Related Entertainment, L.L.C. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
22. IT IS FURTHER ORDERED that, the Complaint of the D.T.
Fleming Arboretum and Martha Vockrodt-Moran, against Visionary
Related Entertainment, L.L.C. IS DISMISSED.
23. 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.
24. 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.
25. 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.
26. 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 Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.40
27. 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 Visionary
Related Entertainment L.L.C.
FEDERAL COMMUNICATIONS COMMISSION
John R. Raymond
Resident Agent
Honolulu Office
Western Region
Enforcement Bureau
_________________________
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).
3See 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).
447 C.F.R. § 1.1310, Note 1 to Table 1.
547 C.F.R. § 1.1310, Note 2 to Table 1.
6See, for example, OET Bulletin 65.
7See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.
8
47 C.F.R. § 1.1310.
9
Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13538;
47 C.F.R. § 1.1307(b).
10
Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13540; 47 C.F.R. §
1.1307(b)(5). See also, Public Notice, Year 2000 Deadline for
Compliance with Commission's Regulations Regarding Human Exposure
to Radiofrequency Emissions (released Feb. 25, 2000); Public
Notice, Erratum to February 25, 2000 Public Notice, 15 FCC Rcd
13600 (released April 27, 2000); Public Notice, Reminder of
September 1, 2000, Deadline for Compliance with Regulations for
Human Exposure to Radiofrequency Emissions, 15 FCC Rcd 18900
(released Aug. 24, 2000).
11See File No. BPH-20040716ABZ, accepted July 19, 2004 (``July
2004 Application''). During an inspection on January 26, 2004,
Honolulu agents observed that the KAOI-FM's antenna height of
radiation center above ground level (AGL) was approximately 14
meters, as opposed to the authorized 25 meters. Consequently,
the Honolulu Resident Agent Office issued a Notice of Violation
(``NOV'') to Visionary on February 26, 2004, for modifying the
KAOI-FM transmission systems without authorization pursuant to 47
C.F.R. § 73.1690(c)(1). Visionary responded to the NOV on April
19, 2004, stating that the authorized center of radiation of 25
meters, as shown on the Commission's data base, was a typo or
transposition and that it would take action to correct the error.
Visionary also states, in the July 2004 Application that a 1995
license grant to Visionary used parameters underlying an older
construction permit, and that the license issued by the
Commission on October 19, 1995 contained the alleged
typographical error. July 2004 Application, Engineering Statement
at p. 1 - 2. Commission's records reveal, however, that in
correspondence dated October 18, 1995, John Detz, President, KAOI
Radio Group, wrote that ``item 9 d [radiation center above
ground] on Form 302-FM, page 4 as corrected should read the
accurate 25 meters RCAGL.'' Letter of John Detz to Dan Fontaine,
Federal Communications Commission, October 18, 1995.
12See ``Media Bureau Announces Dismissal of Unamended Form 301,
314, and 315 AM and FM Applications'' (DA 04-3647, Released
November 18, 2004.) (``Public Notice''). According to the Public
Notice, the application was dismissed pursuant to Section
73.3568(a)(1) of the Commission's Rules for failure to prosecute.
Specifically, Visionary failed to amend its application to show
compliance with the new local ownership rules or to request a
waiver of those rules. Visionary filed a petition for
reconsideration of the dismissal on December 15, 2004.
13July 2004 Application, Item 17.
14July 2004 Application, Engineering Statement at p. 3. 4614.37
microwatts per squared centimeter is equivalent to 4.614 mW/cm2.
15Complaint of D.T. Fleming Arboretum and Martha Vockrodt-Moran,
filed October 20, 2004 (``Complaint''). Ms. Vockrodt-Moran had
previously telephoned the Honolulu resident Agent Office in
November, 2003, about the potential RFR hazards from the KAOI-FM
antenna. She also filed informal complaints in August, 2004.
16Complaint at 5.
17Visionary Related Entertainment LLC Motion to Dismiss
Complaint, filed December 14, 2004 ``(Motion to Dismiss'').
18Response of D.T. Fleming Arboretum and Martha Vockrodt-Moran,
filed December 23, 2004 (``Response'').
19The personal RF monitor LED lit continually throughout this
area, and the unit emitted an audible warning, indicating the RFR
in the area likely exceeded the public RFR MPE.
20The result was then multiplied by a probe calibration factor of
0.58 for measurements in the 100 MHz FM band.
21The area in the immediate vicinity of the antenna support pole
also exceeded the occupational RFR MPE limits, with a reading of
122%.
22 In the Motion to Dismiss, filed December 14, 2004, Visionary
notes that its engineers met with the Honolulu agents on November
17, 2004, to take RFR measurements and that Visionary is
``constructing a four foot fence extending out from the tower
site as an added buffer, which construction should be completed
shortly.'' Motion to Dismiss at 4. On January 17, 2005,
Visionary notified the Commission's Honolulu Office that they had
``constructed a fence at the base of the tower that complies with
the full Class C power level at the currently licensed
allocation.'' Letter of Visionary Related Entertainment to
Federal Communications Commission, Honolulu Office, January 17,
2005.
23Despite Visionary's response to the LOI, and the station
engineers' statement to the Honolulu agents on November 17, 2004,
Visionary has not filed any requests for STA with the Commission
for KAOI-FM during the past year.
24Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
25
Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'repeated',
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.''
2647 C.F.R. § 1.1310.
2747 C.F.R. §§ 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional
guidance is provided in OET Bulletin 65.
28The July 2004 Application Engineering Statement states that
``[b]ecause the predicted field intensity exceeds the maximum
levels for controlled and uncontrolled exposure at ground level,
procedures for the existing and proposed facilities will help
bring the facility into compliance . . .'' Engineering Statement
at p.4 The Engineering Statement also indicates that ``[p]roper
RF Warning signs and a full list of RF safety procedures for
tower maintenance posted on site should be sufficient to satisfy
Federal Regulations concerning the controlled/occupied [sic]
standards.'' Id. During the November 17, 2004 inspection, the
Honolulu agents found no signs warning the public or workers of
RFR in the vicinity of the antenna system or even on the antenna
support pole.
29 47 C.F.R. 1.1310
30
Forfeiture Policy Statement and Amendment of Section 1.80(b) of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
31
The fact that the Forfeiture Policy Statement does not specify a
base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that ``... any
omission of a specific rule violation from the ... [forfeiture
guidelines] ... should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant. Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission retains
the discretion, moreover, to depart from the Forfeiture Policy
Statement and issue forfeitures on a case?by?case basis, under
its general forfeiture authority contained in Section 503 of the
Act. Id.
32A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).
3347 U.S.C. § 503(b)(2)(D).
34Complaint at 5.
35Motion to dismiss at 1.
36Response at 2.
3747 C.F.R. § 1.41.
38See, e.g., Radio One, et al, 2004 WL 2848616 (FCC 04-281,
Released December 10, 2004).
3947 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
1.1310.
40
See 47 C.F.R. § 1.1914.