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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Minority Business & Housing
Development, Inc. ) File No. EB-06-NY-275
Licensee of Station WYGG ) NAL/Acct. No. 200832380002
Asbury Park, New Jersey ) FRN: 0007512528
Facility ID # 19867 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 20, 2007
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Minority Business & Housing Development, Inc. ("MBHD"), licensee
of FM radio station WYGG in Asbury Park, New Jersey, apparently
willfully and repeatedly violated Section 1.1310 of the Commission's
Rules ("Rules), by failing to comply with radio frequency radiation
("RFR") maximum permissible exposure ("MPE") limits applicable to
facilities, operations, or transmitters; Section 73.1350(a) of the
Rules, by operating with an excessive antenna height from an
unauthorized location; and Section 73.3527(a) of the Rules, by failing
to maintain a public inspection file. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
MBHD is apparently liable for forfeiture in the amount of twenty-five
thousand dollars ($25,000). We also admonish MBHD for failing to post
its station license, failing to maintain a station log, and failing to
designate a chief operator, as required under Sections 73.1230,
73.1800, 73.1820, and 73.1870 of the Rules.
II. BACKGROUND
2. WYGG's station license (File No. BLED-19940304KZ) authorizes WYGG to
operate with an antenna height of 14 meters above ground level ("AGL")
at the coordinates 40DEG 13' 01'' north latitude and 074DEG 00' 33''
west longitude. The station license also provides that the licensee
must "reduce power or cease operation as necessary to protect persons
having access to the site, tower or antenna from radiofrequency
electromagnetic fields in excess of FCC guidelines." On its most
recent license renewal application (File No. BRED-20060125AGT) for
station WYGG, granted May 24, 2006, MBHD certified that there had been
FCC violations during the preceding license term, and indicated that
it had implemented steps to correct the violations. MBHD also
certified on the application that the documentation required by the
Rules has been placed in the station's public inspection file, and
that its facility complies with the maximum permissible radiofrequency
electromagnetic exposure limits for controlled and uncontrolled
environments.
3. On November 16, 2006, an agent from the Commission's New York Office
monitored WYGG using a standard FM car radio and observed that the
station could be heard from a distance of approximately 20 miles away,
which was significantly further than the station's predicted coverage
area. Using an FCC direction finding vehicle, the agent monitored
station WYGG on 88.1 MHz, and found that the station was operating
from an antenna mounted on the roof of 601 Bangs Avenue, Asbury Park,
New Jersey 07712, at coordinates 40DEG 13' 01'' north latitude and
074DEG 00' 36'' west longitude, approximately 83 meters west of the
station's authorized location. The antenna was mounted at a height of
43.9 meters AGL, which exceeded its authorized antenna height by 29.9
meters. The Enforcement Bureau previously issued a forfeiture in the
amount of thirteen thousand dollars ($13,000) to MBHD for, inter alia,
operating WYGG from this unauthorized location at the same
unauthorized antenna height.
4. After identifying the station's location, the agent then entered the
building located at 601 Bangs Avenue and identified himself to the
front desk clerk. The clerk indicated that he had a key to the roof
and contacted the building manager, who escorted the agent to the
roof. To access the roof, it was necessary to unlock a padlocked door
that led into a poorly illuminated elevator equipment room, which was
followed by an unlocked door leading outside to the lower level of the
roof. The roof had an upper level, which could only be accessed by
climbing a ladder mounted on the side wall. The agent observed WYGG's
transmitting antenna approximately 8 feet above the upper roof level
mounted on a pole approximately 3 feet away from the top of the
ladder. The agent also observed a set of cellular antennas mounted on
the side wall around the edges of the upper roof, and a set of 8 thick
cables laid across the upper roof within several feet of WYGG's
antenna. Using a personal RF safety monitor, the agent determined that
there was an area near the top of the ladder leading to the upper roof
that met or exceeded the general population RFR MPE limits. There were
no warning signs or barriers on the rooftop to prevent access to the
area in question. The agent observed WYGG's transmitter operating at
an output power of 240 watts. In response to questions, the building
manager stated that workers routinely gain access to the roof by
obtaining a key from the front desk or the office on the 11th floor
and that workers recently accessed the roof to work on the cellular
equipment. She also stated that she was unaware of any RFR hazards on
the roof.
5. Immediately after the rooftop inspection on November 16th, the agent
inspected WYGG's main studio, located on the 7th floor of the
building. During the inspection, the agent observed that there was no
public file, no chief operator designation, no station license posted,
and very few station logs. The agent observed in the station's records
a 2-year lease agreement which commenced on April 1, 2005, between the
building owner and WYGG's station manager, for the lease of 601 Bangs
Avenue, Suite 705. The lease also specified the installation of one
antenna on the roof. During the 2002 investigation, building
management for 601 Bangs Avenue stated that, based on engineering
drawings, the WYGG antenna was mounted on the roof of the building 144
feet (43.9 meters) above ground level, which exceeds its authorized
antenna height by 29.9 meters. The agent advised the station manager
that MBHD was in violation of the FCC's Rules for operating from an
unauthorized location and height, for excessive levels of RFR on the
rooftop, for not having a public file, and detailed other violations
found. The agent informed the station manager that these were many of
the same violations for which MBHD received an NOV and forfeiture in
2002. The station manager admitted that the station did not have a
public inspection file, that there was no designated chief operator,
and that their contract engineer, who comes by occasionally, is the
only one who knows anything about the transmission system or knows how
to operate the EAS equipment. The manager stated that he was not aware
of the RFR issue and he made no mention of any signs posted or
procedures to follow regarding RFR.
6. On November 20, 2006, agents from the Commission's New York and
Philadelphia Offices conducted a RFR survey of radio station WYGG on
the rooftop of 601 Bangs Avenue, Asbury Park, New Jersey. Agents
contacted building management, who instructed the agents to obtain the
key for the padlocked door from the office on the 11th floor. After
opening the padlocked door that led into the elevator equipment room,
the agents observed two small, inconspicuous signs near the unlocked
door that led to the rooftop. One was a small RFR sign posted to the
left of the door by a wireless service provider indicating that the
RFR levels may exceed FCC Standards for general public exposure. The
sign did not indicate which areas on the roof exceeded the public or
general population limits. The second was a small white paper sign
glued to the right of the access door advising of a "radio frequency
hazard" and that "anyone who has to climb the ladder to the top out of
this door please contact the radio station on 7th floor suite 705."
Two phone numbers for the station were listed on the sign. Neither
warning sign was clearly visible because the elevator equipment room
was not illuminated. The view of the small white sign to the right of
the access door was blocked by a large piece of electrical equipment.
7. The agents then proceeded to the upper rooftop to conduct RFR
measurements. There were still no warning signs or barriers on the
rooftop to prevent access to hazardous areas. Using a calibrated RFR
meter, the agents determined that the occupational and general
population limits were exceeded in an area about 5 feet around WYGG's
antenna support pole. The agents made a total of 12 spatially averaged
measurements one foot from WYGG's antenna support pole at a single
location where the highest RFR levels were detected. The measurements
showed that the RFR level was 158% of RFR MPE occupational limit, and
790% of the general population RFR MPE limit, or 1.58 mW/cm2
8. Immediately after making the RFR measurements, an agent contacted the
station manager at one of the numbers listed on the warning sign in
order to determine whether WYGG was able to comply with the station
license's requirement that the "licensee must reduce power or cease
operation to protect persons having access to the site, tower or
antenna from radiofrequency electromagnetic fields in excess of FCC
guidelines." The agent stated to the station manager that workers were
about to go on the roof and asked the manager if there were any
hazards for persons working on the upper level roof. The manager
indicated that there were no hazards on the roof but that the workers
should not go too close to the antenna. The agent repeatedly informed
the manager that men would be working near the antenna on the upper
roof and asked if there would be a problem. The manager stated that
the antenna has been up there for 5 or 6 years and that people had
worked on the roof before and nothing happened. The agent called the
manager back about 10 minutes later, explained that he was still
concerned about RFR from the antenna, and asked if it would be
possible to temporarily turn off the power to the station so that the
men could work safely on the roof. The manager said that he would ask
the station operators to turn off the station. A few minutes later,
the manager called the agent back and said he was going to the station
himself to turn off the station. Shortly thereafter, the manager
called the agent again, stating that he was at the studio and was
turning off the station for 30 minutes. The agent asked the manager if
it would be safe for the men to go to the upper roof, and the manager
said that it would. The agents then observed that the radio
transmitter for station WYGG was still active and operating with an
output power of 240 watts.
9. Several minutes later, the station manager came to the rooftop. When
agents asked why the power to the station was not turned off after he
agreed to do so, the manager explained that he thought that turning
off the audio to the radio station was sufficient. The agents
explained that the transmitter itself must be turned off in order to
eliminate the RFR emanating from the antenna. After the WYGG
transmitter was turned off, the agents conducted additional RFR
measurements in the same location under WYGG's antenna with the
calibrated RFR meter. No RFR emissions were detected when station WYGG
was off the air, which indicated that WYGG was responsible for 100% of
the emissions measured earlier. Therefore, the RFR emissions from WYGG
were 158% of RFR MPE occupational limit, and 790% of the general
population RFR MPE limit, or 1.58 mW/cm2. The agents explained to the
manager that the RFR levels due to WYGG's transmission exceeded the
occupational and general population MPE limits, creating an RFR
hazard, and that the problem should be addressed as soon as possible.
The agents also advised the manager that, in addition to the RFR
violations, the station was still in violation for operating at an
unauthorized location and height.
10. On November 21, 2006, an agent from the New York Office called the
licensee, MBHD, and spoke to MBHD's Executive Director, Dr. Philius
Nicholas. The agent explained all the violations found and noted that
these were some of the same violations cited in the NOV and NAL issued
in 2002. Dr. Nicholas stated that he previously submitted an
application to move WYGG to 601 Bangs Avenue, at an increased height
and lower power. The agent explained that WYGG was never authorized to
operate from that location and height and FCC records show that the
construction permit application (File No. BPED-20020808ADH) was never
granted and was in fact dismissed per the applicant's request.
11. On November 27, 2006, MBHD submitted a Special Temporary Authority
("STA") application, File No. BLSTA-20061127AFU, to the Audio Division
of the FCC's Media Bureau requesting authority for station WYGG to
remain silent. On November 30, 2006, the Audio Division granted, by
Official Letter, 1800B3-ALM, MBHD's request for an STA to remain
silent for a period not to exceed 180 days.
12. On January 4, 2007, MBHD submitted a STA application, File No.
BSTA-20070104ACJ, to the Audio Division requesting authority to
operate station WYGG from a site other than the licensed site and
other than 601 Bangs Avenue. In the request, MBHD stated that its
licensed site is no longer available and requested an STA in order to
resume broadcasting. On January 4, 2007, the Audio Division granted
the STA, which was set to expire on April 4, 2007. On January 18,
2007, the Audio Division informed the New York Office that MBHD had
notified them that WYGG had gone back on the air. Before reinstating
the station's official "on-air" status, the Audio Division requested
that the New York Office re-inspect WYGG to determine if the station
was operating with the facilities authorized by the STA.
13. On January 30, 2007, agents conducted an inspection of WYGG's new
facilities, located at 414 Asbury Avenue, Asbury Park, New Jersey
07712, with the station manager. The agents determined that the
station was operating at the location, antenna height, and power
authorized by the STA. The STA letter and chief operator designation
were posted at the studio, and there were labeled folders in the
public file for all required elements, but the file was incomplete.
Specifically, there were no quarterly issues/programs listings in the
file. The agents explained what kind of entries needed to be made
according to FCC Rules. The transmitting antenna was located on the
roof of a building next door to 414 Asbury Avenue, mounted on a pole
approximately 20 feet above the roof at the south west corner of the
building. The agents used a calibrated RFR meter to determine if any
areas on the roof exceeded the public or occupational RFR MPE limits.
The agents conducted several sets of spatial average measurements
under the WYGG antenna, and determined that the levels were in
compliance with the occupational and general population RFR MPE
limits.
III. DISCUSSION
14. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Compliance with RFR Limits
15. 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. 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" Table 1 in
Section 1.1310 of the Rules provides that, for stations operating in
the frequency range of 30 MHz to 300 MHz, the occupational/controlled
RFR MPE limit given in terms of mW/cm2 is 1.0 mW/cm2, and the general
population/uncontrolled RFR MPE limit is 0.20 mW/cm2. Because it
operates on 88.1 MHz, these limits apply to station WYGG. 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.
16. Whether the general population/controlled RFR MPE limit or the general
population/uncontrolled RFR MPE limit applies in an area depends on
who is being exposed to the RFR. In situations where 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 occupational/controlled MPE limits apply. In
situations where the general public may be exposed, or where 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, the general population/ uncontrolled MPE limits apply.
In the case of WYGG, the general population limits apply. The roof
where WYGG's antenna was located may not have been accessible by the
general public, but it was accessible by workers who were not aware of
their potential for exposure and could not exercise control over it.
The building manager and station manager both stated that they were
not aware of the RFR hazard and reported to the agents that workers
routinely access the roof. Although warning signs were posted inside
near the roof access door, these signs were inconspicuous due to poor
illumination and a large piece of electrical equipment blocked the
view of one of the signs. Moreover, the areas on the rooftop that
exceeded the general population RFR MPE limit were not marked in any
way. Thus, the 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." Therefore, even
though access to the roof was controlled by a padlocked door, we find
that the rooftop was subject to the Commission's general population
limits.
17. On November 16, 2006, an agent from the New York Office conducted a
preliminary RFR survey on the roof of 601 Bangs Avenue and determined
that there was an area near the WYGG antenna that met or exceeded the
general population RFR MPE limits. At that time, WYGG station
management was warned of excessive RFR levels on the roof.
18. On November 20, 2006, agents returned to the rooftop and found that an
area on the upper rooftop near the WYGG antenna exceeded both the
general population RFR MPE limits. Specifically, measurements made
using a calibrated RFR meter showed that the area on the upper rooftop
near the WYGG antenna measured 790% of the general population RFR MPE
limit, or 1.58 mW/cm2. Accordingly, because the RFR MPE limits were
exceeded and because agents had determined that WYGG's antenna was
solely responsible for the RFR emissions on the rooftop, MBHD was
responsible for ensuring compliance with the RFR Rules.
19. Agents found that there were no warning signs, barriers or any other
markings placed on the roof to prevent access to hazardous areas.
Although roof access was limited by a padlocked door, workers
routinely obtained the key and had complete access to all areas on the
roof, including the area that was above the occupational and general
population RFR MPE limits, without any apparent knowledge of the level
of RFR emissions on the roof. When informed by FCC agents that workers
needed to access a hazardous area on the rooftop, station personnel
failed to appropriately reduce power or cease operation to protect
persons having access to the site. Based on the evidence before us, we
find that MBHD violated Section 1.1310 of the Rules by producing power
density levels in excess of the general population RFR MPE limits and
by failing to adequately protect workers from areas that exceeded
these limits. MBHD's certification in its 2006 License Renewal
Application that its "facility complies with the maximum permissible
radiofrequency electromagnetic exposure limits" demonstrates that MBHD
was aware of its responsibilities pursuant to the Commission's RFR
Rules. Additionally, New York agents warned MBHD about the excessive
levels of RFR on the roof on November 16, 2006, and a subsequent
inspection on November 20, 2006, revealed that the RFR emissions
continued to greatly exceed the general population MPE. Consequently,
we find that MBHD's violation was willful. The power density levels
were in excess of the general population limits for more than one day,
therefore, the violation was repeated.
B. Station Location and Antenna Height
20. Section 73.1350(a) of the Rules provides that each licensee is
responsible for maintaining and operating its broadcast station in a
manner which complies with the technical rules and is in accordance
with the terms of the station authorization. On November 16 and 20,
2006, agents found that WYGG was operating from an unauthorized
location with an antenna height that exceeded the station's authorized
antenna height by 29.9 meters. This resulted in a coverage area far
exceeding its allowable coverage area as defined by the 60 dBm service
contour. At the time of the inspection, WYGG had a current lease
agreement with the building owner which specified the installation of
one antenna on the roof, and the station manager later stated to the
agent that the antenna has been on the roof for "five or six years."
MBHD previously had been warned of this violation in NOVs and a NAL.
Notwithstanding this prior enforcement action and the oral warning on
November 16, 2006 regarding the station's unauthorized location and
antenna height, WYGG was still operating from the unauthorized
facilities on November 20, 2006. Based on the evidence before us, we
find that, by operating with an excessive antenna height from an
unauthorized location, MBHD apparently willfully and repeatedly
violated Section 73.1350(a) of the Rules by failing to operate its
station in accordance with the terms of the station authorization.
C. Public Inspection File
21. Section 73.3527(a) of the Rules provides that every permittee or
licensee of an AM, FM, or TV station in the noncommercial educational
broadcast services shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(11). On November 16, 2006, an agent inspected WYGG's main
studio and found that the station did not maintain any public
inspection file. During the inspection, the station manager admitted
that the station did not have a public inspection file. MBHD
previously had been warned of this violation in NOVs issued in 2002.
On January 30, 2007, agents inspected WYGG's new main studio and found
that, although a public file had been created, it did not contain any
quarterly issues/programs listings. Based on the evidence before us,
we find that MBHD apparently willfully and repeatedly violated Section
73.3527(a) of the Rules by failing to maintain a public inspection
file.
D. Posting of Station License, Station Logs, and Chief Operator
Designation
22. Section 73.1230 of the Rules provides that the licensee of each
broadcast station must post the station license and any other
instrument of station authorization in a conspicuous place and in such
a manner that all terms are visible at the place the licensee
considers to be the principal control point of the station. During the
studio inspection on November 16, 2006, the agent observed that the
station license was not posted, and could not be found anywhere in the
studio. We therefore admonish MBHD for violating Sections 73.1230 of
the Rules.
23. Section 73.1800 of the Rules provides that the licensee of each
broadcast station must maintain a station log as required by Section
73.1820, and Section 73.1820(a)(iii) provides that all stations must
make log entries of each test and activation of the Emergency Alert
System (EAS) pursuant to the requirements of part 11 of the Rules and
the EAS Operating Handbook. During the inspection on November 16,
2006, the agent found station logs, including EAS logs, only for
December 2004 through April 2005 and several printouts of EAS
activations still attached to the EAS equipment only for March 2006 to
April 8, 2006. The agent observed that the EAS equipment was out of
printer paper so that more recent EAS activations could not be logged.
There were no other station logs or EAS logs present. We therefore
admonish MBHD for violating Sections 73.1800 and 73.1820 of the Rules.
24. Section 73.1870 of the Rules provides that the licensee of each AM,
FM, TV or Class A TV broadcast station must designate a person to
serve as the station's chief operator and that the designation of the
chief operator must be in writing with a copy of the designation
posted with the station license. During the November 16, 2006 studio
inspection, the agent observed that there was no written chief
operator designation. During the inspection, WYGG's station manager
admitted that there was no designated chief operator. We therefore
admonish MBHD for violating Section 73.1870 of the Rules.
E. Forfeiture Amount
25. The Commission's Forfeiture Policy Statement and Amendment of Section
1.80(b) of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement") does not specify a base forfeiture for
violation of the RFR maximum permissible exposure limits in Section
1.1310. 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. The base forfeiture
amount for exceeding the authorized antenna height is $5,000, and the
base forfeiture amount for violation of the public file rule is
$10,000. In assessing the proposed monetary forfeiture amount, we must
also take into account the statutory factors set forth in Section
503(b)(2)(E) 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.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that MBHD is
apparently liable for a $25,000 forfeiture for willfully and
repeatedly exceeding the RFR MPE limits in violation of Section 1.1310
of the Rules, operating its station at an unauthorized location with
an unauthorized antenna height in violation of Section 73.1350(a) of
the Rules, and failing to maintain a public inspection file in
violation of Section 73.3527(a) of the Rules.
IV. ORDERING CLAUSES
26. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
.314 and 1.80 of the Commission's Rules, Minority Business & Housing
Development, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for
violations of Sections 73.1350(a), 1.1310 and 73.3527(a) of the Rules.
27. IT IS FURTHER ORDERED that Minority Business & Housing Development,
Inc. IS ADMONISHED for its violations of Sections 73.1230, 73.1800,
73.1820(a)(iii), and 73.1870 of the Rules.
28. 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, Minority Business &
Housing Development, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
29. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
30. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014 and must include the NAL/Acct. No.
referenced in the caption.
31. 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.
32. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
33. 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 Minority Business & Housing
Development, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Enforcement Bureau
47 C.F.R. S: 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").
47 C.F.R. S: 73.1350(a).
47 C.F.R. S: 73.3527(a).
47 U.S.C. S: 503(b).
All 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. S: 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. S: 1.1307(b)
The Philadelphia Office issued a NAL to MBHD on December 30, 2002, in the
amount of $13,000 for unauthorized antenna height and location and no EAS
equipment installed. See Minority Business & Housing Development, Inc.,
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332400003
(rel. December 30. 2002). MBHD did not dispute the violations and after
issuance of a Forfeiture Order and Memorandum Opinion and Order, MBHD paid
the forfeiture on November 17, 2004. See Minority Business & Housing
Development, Inc., Forfeiture Order, 18 FCC Rcd 9422 (2003), Memorandum
Opinion and Order, 19 FCC Rcd 8929 (2004). Notices of Violation ("NOV")
were issued by the FCC's Philadelphia Office on May 30, 2002 and July 24,
2002, citing MBHD for unauthorized antenna height and location,
unauthorized antenna type, no public file, no EAS equipment installed, no
station logs, and no chief operator designation or review. The July 24,
2002 NOV also cited MBHD for failure to respond to the first NOV.
WYGG FM Broadcast Station License, File No. BLED-19940304KZ, granted May
15, 1995.
On April 3, 2007, MBHD submitted an application for Extension of the STA,
File No. BESTA-20070403ACK, and an application for Construction Permit,
File No. BPED-20070403ABV, to operate station WYGG from 414 Asbury Avenue.
On July 23, 2007, the Audio Division granted MBHD a 36-month Construction
Permit. The STA extension application was accepted for filing and was
granted on October 11, 2007.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
See 47 C.F.R. S:S: 1.1307(b), 1.1307(b)(1), 1.1310.
47 C.F.R. S:S: 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").
Entravision Holdings, LLC, 22 FCC Rcd 2279, 2283 (EB 2007). See also.,OET
Bulletin 65 at 1 - 10.
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. 47 C.F.R. S: 1.1310, Note 1 to Table 1.
47 C.F.R. S: 1.1310, Note 2 to Table 1.
See Americom Las Vegas Limited Partnership, 19 FCC Rcd 9643 (Enf. Bur.
2004), affirmed 12 FCC Rcd 14286 (2006).
47 C.F.R. S: 1.1310, Note 2 to Table 1.
See id. See also A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002);
Entravision Holdings, LLC, 22 FCC Rcd 2279, (EB 2007); Infinity
Broadcasting of Tampa, Florida, 22 FCC Rcd 2288 (EB 2007).
See WYGG 2006 Renewal Application, Section III, Question 6.
47 C.F.R. S: 73.1350(a)
See supra n. 4.
47 C.F.R. S: 73.3527(a)
See supra n. 4.
47 C.F.R. S: 73.1230.
47 C.F.R. S:S: 73.1800, 73.1820(a)(iii).
47 C.F.R. S: 73.1870.
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).
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.
A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1350(a),
1.1310, and 73.3527(a). 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").
47 C.F.R. S:S: 73.1230, 73.1800, 73.1820(a)(iii), 73.1870.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission
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Federal Communications Commission