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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Visionary Related Entertainment,
L.L.C. ) File Number: EB-08-HL-0096
Licensee of FM Broadcast Station KNUQ ) NAL/Acct. No. 200832860002
Paauilo, Hawaii ) FRN: 0005410295
Facility ID #15969 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 20, 2008
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 KNUQ(FM), in Paauilo, Hawaii, 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 limits applicable to facilities, operations, or
transmitters. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Visionary is
apparently liable for a 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 on towers at
frequencies from 300 kHz to 100 GHz. 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. 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.
Licensees can demonstrate compliance by restricting public access to areas
where RFR exceeds the public MPE limits.
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." 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. 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. 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.
4. KNUQ(FM) Renewal Application. In its most recent application for
renewal of the KNUQ(FM) license, Visionary included an Engineering
Statement concerning the RFR levels at and around the KNUQ(FM) transmitter
site. In the Engineering Statement, Visionary acknowledged that at 100kW
ERP, the KNUQ(FM) antenna will produce a calculated maximum field
intensity level of 1934.47 microwatts per square centimeter [(1.934
mW/cm2)] at a distance of 5 meters [16.4 feet] from the base of the tower
. . . , 969.85 microwatts per squared centimeter [(0.969 mW/cm2)] at 8.3
meters [27.22 feet] from the base of the tower . . . [and] 187.79
microwatts per squared centimeter [(0.187 mW/cm2)] at 10.1 meters [33.12
feet] from the base of the tower." Visionary also states that
"[p]recautions and procedures have been formulated to deal with workers
involved in tower and antenna maintenance. . . . The site is isolated and
remote, and not accessible by the general public. . . . A secure fence
further restricts access to areas above the public and occupied limits."
5. The KNUQ(FM) Inspection. The KNUQ(FM) transmitter site is located at
the Uluapalakua Ranch, in Maui, Hawaii. KNUQ(FM) is licensed to operate at
100 kW ERP. The KNUQ(FM) antenna system is a seven bay Jampro JHCP-7,
circularly polarized, and side mounted on a self-supporting steel tower.
Although vehicular access to the transmitter site is restricted by means
of a locked gate, pedestrian access is not restricted, and there are
private residences past the locked gate. The property is fenced throughout
to contain cattle, and ranch and winery storage buildings are adjacent to
the site. There is a residence down a steep hillside, some 1000 yards from
the antenna, and the main road continues up the hill to an arboretum and
other residences. The antenna is enclosed by irregular fencing, as close
as 15 feet from the antenna structure on the south and west sides. Three
RF radiation warning signs are posted on the fence.
6. On April 9, 2008, Honolulu agents conducted an inspection at the
KNUQ(FM) transmitter site with the KNUQ(FM) Chief Engineer. At the time of
inspection, the transmitter power output (TPO) was 18,200 watts. Using an
antenna power gain of 3.8, as specified in the KNUQ(FM) License
Application Engineering Data, and assuming a transmission line loss of 1
kW, the station's effective radiated power ("ERP") was 68.16 kW, well
below the authorized power of 100 kW ERP. The agents employed a personal
RF monitor to identify and mark an "L" shaped area of high RFR outside
the fence which enclosed the KNUQ(FM) transmitter site. In this "L"
shaped area, the fence enclosing the transmitter site is less than 15 feet
from the tower. The "L" shaped area with potential high RFR levels
extended approximately 36 feet along the western face of the fence, and 54
feet along the southern face of the fence. Measurements were conducted
at four locations throughout this area, ranging from 20 to 40 feet from
the tower, and from 5 to 25 feet from the fence, using a calibrated RFR
meter. The agents employed a spatial averaging measurement technique,
where measurements in four quadrants are averaged to give a representative
reading for each location. Public and occupational RFR MPE levels were
exceeded throughout this area of approximately 1100 square feet, ranging
from 0.9 mW/cm 2 to 1.95 mW/cm 2 (90 to 195% of the occupational MPE
limits, and 450 to 975% of the public MPE limits). The agents informed
the KNUQ(FM) Chief Engineer that KNUQ(FM) had exceeded the RFR limits in
the area of concern.
7. On May 13, 2008, Honolulu agents conducted a follow-up inspection at
the KNUQ(FM) transmitter site. Again, the agents employed a personal
RF monitor to identify the same general "L" shaped area of concern,
of approximately 1100 square feet, outside the fence which enclosed
the KNUQ(FM) transmitter site where high levels of RFR were
previously detected. The area of concern extended approximately 40
feet along the western face of the fence, and 50 feet along the
southern face of the fence with potential high RFR levels. In this
area of concern, the fence enclosing the transmitter site is less than
15 feet from the tower. Measurements were conducted at four locations
throughout this area, each approximately 30 feet from the tower,
using a calibrated RFR meter. The agents employed a spatial averaging
measurement technique, where measurements in four quadrants are
averaged to give a representative reading for each location. Again,
both public and occupational RFR MPE levels were exceeded in this
area of concern, ranging from 1.36 mW/cm 2 to 2.3 mW/cm2 (136 to 230%
of the occupational MPE limits, and 680 to 1150% of the public MPE
limits).
8. During the May 13, 2008, inspection, the agents noted ranch workers in
a fenced area adjacent to the KNUQ(FM) transmitter, and interviewed
Ulupalakua Ranch personnel to confirm that the Ulupalakua Winery was
still using the storage building next to the KNUQ(FM) site. There is
no fence prohibiting free access to the high level RFR areas of
concern by ranch workers, winery employees, arboretum visitors,
residents, or other members of the public.
III. DISCUSSION
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. The term "repeated"
means the commission or omission of such act more than once or for more
than one day.
10. Section 1.1310 of the Rules requires licensees to comply with RFR
exposure limits. 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. Although vehicular access to the site is restricted by means of a
locked gate, pedestrian access is relatively unrestricted, and there are
private residences past the locked gate. In addition, employees of
Ulupalakua Ranch and Ulupalakua Winery, D.T. Fleming Arboretum visitors,
and maintenance personnel can access the area. As indicated above, the
general population or public exposure limits apply in situation where 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. Given the
statements made by Visionary in its Engineering Statement, we find that
Visionary was aware of the levels of RFR in the area of concern
surrounding the transmitter site. While it appears that Visionary made its
workers and those maintaining its transmitter aware of the RFR exposure
potential, and gave them the ability to control their exposure, we find no
evidence that Visionary made other workers who could access the area of
concern, or the general public, aware of the potential for exposure in the
1100 square foot area of concern outside the fence enclosing the KNUQ(FM)
transmitter site. We also find that Visionary did not restrict access to
an area of concern where RFR exceeded both the public and occupational MPE
limits on April 9 and May 13, 2008. 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.
As Visionary was aware of the KNUQ(FM) RFR exposure issues and failed to
take subsequent corrective action even after the Honolulu agents' initial
inspection on April 9, 2008, Visionary's violation is willful. The
violation occurred on more than one day, and is therefore repeated.
12. Based on the evidence before us, we find that Visionary apparently
willfully and repeatedly violated Section 1.1310 of the Rules by exceeding
the public RFR MPE limits in an area accessible by the public or by
workers who were not fully aware of the potential for exposure, and by
failing to adequately take measures to prevent access to an area that
exceeded the RFR exposure limits. We note that if Visionary had been
operating at its full authorized power, the RFR levels would be
significantly higher.
13. 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 RFR rules. In assessing the 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 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. 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.
IV. ORDERING CLAUSES
14. 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.
15. 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.
16. 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/Account Number and FRN Number referenced above.
Payment by check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire
transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC,
and account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form 159,
enter the NAL/Account number in block number 23A (call sign/other ID), and
enter the letters "FORF" in block number 24A (payment type code). Requests
for full payment under an installment plan should be sent to: Chief
Financial Officer -- Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, D.C. 20554. Please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov
with any questions regarding payment procedures. Visionary Related
Entertainment, L.L.C., shall also send electronic notification on the date
said payment is made to WR-Response@fcc.gov.
17. 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. An electronic copy shall be sent
to WR-Response@fcc.gov.
18. 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.
19. 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
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 U.S.C. S: 503(b).
See 47 C.F.R. S: 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).
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, for example, OET Bulletin 65.
See 47 C.F.R. S:S: 1.1307(b), 1.1307(b)(1), 1.1310.
47 C.F.R. S: 1.1310.
Guidelines, Second Memorandum Opinion and Order and Notice of Proposed
Rulemaking, 12 FCC Rcd at 13538;
47 C.F.R. S: 1.1307(b).
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). 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).
File No. BRH-20051003CFD, Engineering Statement ("Engineering Statement").
Engineering Statement at 1.
Engineering Statement at 1 - 2.
The 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.
The result was then multiplied by a probe calibration factor of 1.6 for
measurements in the 100 MHz FM band.
The 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.
The result was then multiplied by a probe calibration factor of 1.6 for
measurements in the 100 MHz FM band.
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."
47 C.F.R. S: 1.1310.
47 C.F.R. S: 1.1310. See Entravision Holdings, LLC, 22 FCC Rcd 21718 (EB
2007).
47 C.F.R. S:S: 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional guidance is
provided in OET Bulletin 65.
47 C.F.R. 1.1310
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).
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, 1.1310.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission