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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-0178
Licensee of FM Broadcast Station ) NAL/Acct. No. 200932860001
KTBH-FM
) FRN: 0010123404
Kurtistown, Hawaii
)
Facility ID #164281
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 23, 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 KTBH-FM, in Kurtistown, 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. KTBH-FM License Application. In its license application for
KTBH-FM, Visionary included a Special Operating Conditions Statement
concerning the RFR levels at and around the KTBH-FM transmitter site. In
the Special Operating Statement, Visionary acknowledged that at 50kW ERP,
the KTBH-FM antenna will produce a calculated maximum field intensity
level of 165.49 microwatts per square centimeter [(0.16549 mW/cm2)] at a
distance of 12.5 meters [41.25 feet] from the base of the tower. In its
application Visionary states that "this is just over 80% of the public
limit, and complies with FCC and ANSI regulations and limitations
concerning RF exposure to the general public."
5. The KTBH-FM Inspection. The KTBH-FM transmitter site is located in
Hilo, Hawaii. KTBH-FM is licensed to operate at 50 kW ERP. The KTBH-FM
antenna system is a four bay Jampro JHHP-4, horizontally polarized, and
side mounted on an existing AM tower, utilized by the co-located AM radio
stations KHBC (1060 kHz) and KHLO (850 kHz). The transmitter site is in a
residential area at the northeast corner of Auwae Road and Kahaopea
Street. There is a residence on the adjacent lot along Auwae Road, and a
junkyard on the rear adjacent lot. The property boundary is lined with
light foliage and trees, and is not fenced. A 100-foot gravel and grass
driveway off of Auwae Road allows unrestricted site access to the
property. The driveway leads up to the antenna structure and several
buildings located in a 70 foot by 80 foot area enclosed within a secure
chain link fence. The antenna structure is located approximately in the
middle of the 70 foot by 80 foot rectangular fenced area. The antenna
structures guy wires extend far beyond the fence. The transmitter building
is located just north of the antenna structure inside the enclosed
fencing. One RF radiation caution sign is posted on the north side of the
fence near the entry gate.
6. On June 25, 2008, a Honolulu agent conducted an inspection at the
KTBH-FM transmitter site. The agent first employed a personal RF monitor
to identify and mark two large rectangular areas of potential high RFR
outside the fence. On the east side of the fence, the agent marked a large
rectangular area of concern that extended 10 feet out from the fence and
that ran along the entire 80 foot length of the fence. On the west side
of the fence, the agent marked another large rectangular area of concern
that extended 15 feet out from the fence and that ran along the entire 80
foot length of the fence. In these two rectangular areas of concern, the
fence enclosing the transmitter site is less than 30 feet from the tower.
No RFR warning signs were posted on the east or west facing fence and the
one RF caution sign on the north side of the fence was not visible from
the areas of concern. The agent marked four spots within the areas of
concern outside the fence, ranging from 40 feet to 70 feet from the
antenna structure tower and from 5 to 10 feet outside the fence, to
conduct detailed measurements utilizing a calibrated RFR meter and probe
and employing a spatial averaging measurement technique where
measurements in four quadrants are averaged to give a representative
reading for each location. Public RFR MPE levels were exceeded
throughout these two areas of concern of approximately 800 and 1200
square feet, respectively, ranging from 0.28 mW/cm 2 to 0.46 mW/cm 2 (140
to 230% of the public MPE limits).
7. On June 26, 2008, the Honolulu agent conducted a follow-up inspection
at the KTBH-FM transmitter site with a contract engineer for
co-located AM radio station KHBC. At the time of the inspection, the
transmitter power output (TPO) was 12,200 watts. Using an antenna
power gain of 4.2 as specified in the Jampro Antenna Specification
Engineering Data, and a line loss of 0.214 dB, the station effective
radiated power (ERP) was 48.77 kW, which is 97.5% of the licensee's
authorized ERP. Again, the agent employed a personal RF monitor to
identify the same two large rectangular areas of concern, along the
eastern and western faces of the fence. The areas extended
approximately 10 feet by 80 feet along the eastern face of the fence,
and 15 feet by 80 feet along the western face of the fence.
Measurements were again conducted at four locations within the two
areas of concern, ranging from 40 to 70 feet from the tower, and from
5 to 10 feet outside 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. Again, public RFR MPE levels were
exceeded in the areas of concern, ranging from 0.30 mW/cm 2 to 0.49
mW/cm2 (150 to 245% of the public MPE limits).
8. On-off tests were then conducted, which confirmed that only KTBH-FM
contributed more than 5% of the measured RFR levels. Working with the
contract engineer who gradually lowered the power of KTBH-FM, the
agent conducted RFR measurement at various power levels and determined
that at a 50% power level KTBH-FM would not produce RFR in excess of
the public MPE limits in publically accessible areas. The contract
engineer set the KTBH-FM transmitter at 50% power and notified
KTBH-FM.
9. On July 11, 2008, the KTBH-FM contract engineer advised the agent that
he conducted RFR measurements using his own calibrated RFR meter and
confirmed the non-compliant RFR levels in the same areas identified by
the agent.
III. DISCUSSION
10. 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.
11. 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.
12. Public access to the KTBH-FM transmitter site is unrestricted. The
general population or public exposure limits apply in situations 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 Special Operating Conditions
Statement, we find that Visionary was aware of the RFR MPE limits for the
general public in the areas of concern surrounding the transmitter site.
While it appears that Visionary determined that calculated fields would
comply with FCC and ANSI regulations and limitations concerning RF
exposure to the general public, we find that no actual measurements were
performed to confirm compliance. We also find that Visionary did not
restrict access to areas where RFR exceeded the public MPE limits on June
25 and June 26, 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. Based on
these findings, Visionary's violation is willful. The violation occurred
on more than one day, and is therefore repeated.
13. 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.
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") 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
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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
Ryan Hagihara
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. BLH-20080324AFT, Special Operating Conditions Statement ("Special
Operating Conditions Statement").
Special Operating Conditions Statement at 1.
Special Operating Conditions 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 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 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.
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.
(...continued from previous page)
(continued....)
Federal Communications Commission
6
Federal Communications Commission