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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Mapleton License of Medford, LLC
) File Number: EB-08-PO-0198
Licensee of FM Broadcast Station
KTMT-FM ) NAL/Acct. No. 200932920001
Medford, Oregon ) FRN: 0005023445
Facility ID # 60313 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 22, 2008
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mapleton License of Medford, LLC ("Mapleton"), licensee of FM
Broadcast station KTMT-FM, in Medford, Oregon, 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 Mapleton 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. KTMT-FM Renewal Application. In its most recent application for
renewal of the KTMT-FM license, in Section III, Question 6, titled
"Environmental Effects," Mapleton was unable to certify that KTMT-FM
complied with the maximum permissible radio frequency electromagnetic
exposure limits for controlled and uncontrolled environments and included
an exhibit to explain why it did not comply with the RFR levels at and
around the KTMT-FM transmitter site. In Exhibit 13, Mapleton stated:
Mapleton Communications, L.L.C. cannot at this time certify that KTMT-FM
complies with the maximum permissible radiofrequency exposure limits for
controlled and uncontrolled environments. In preparation for the license
renewal application, Mapleton engaged a consulting engineering firm to
evaluate KTMT-FM's compliance with radiofrequency exposure limits. The
engineer visited the tower site of KTMT-FM and discovered a single, small
area of concern. Mapleton continues to work with the site owner to
rectify the situation, and it anticipates that all required work will be
completed shortly. Mapleton will amend this application at that time to
report the resolution of this issue."
A review of Commission databases did not reveal the submission of that
amendment.
5. The KTMT-FM Inspection. The KTMT-FM transmitter site is located near
the top of Mount Ashland, Oregon. KTMT-FM is licensed to operate at 31
kW ERP with Beam Tilt. The KTMT-FM antenna system is a four bay model
Shively 6810-4-XXLR, circularly polarized, omni-directional, and
side-mounted in the middle of a guyed tower owned by Freedom Broadcasting
of Oregon Licensee, LCC ("Freedom Broadcasting"), licensee of television
stations KTVL and KTVL-DT, serving Medford, Oregon. The center radiation
of KTMT-FM's antenna is approximately 24 meters above ground level. At
the time of the investigation, there were three broadcast stations
operating on the guyed tower: KTVL (Channel 10); KTVL-DT (Channel 35); and
KTMT-FM (93.7 MHz). Although vehicular access to the transmitter site is
restricted by means of a locked, single strand of chain link across the
road with a single RF warning sign, pedestrian access is not restricted,
as there is no fence attached to the chain link gate. There is also no
fence or barrier restricting pedestrian access to the transmitter site or
the transmitter building. Five RF radiation signs are posted: two caution
signs on the front of the building, two caution signs in the back of the
building, and one warning sign on the tower itself.
6. Approximately 230 meters to the east side of the guyed KTMT-FM
transmitter tower is the Mount Ashland Ski Lift Area. According to a
written statement provided by the Ashland Ranger Station of the United
States Forest Service ("USFS"), during the winter months from December to
April, there are about 90,000 skiers visiting the site each year and
approximately twenty percent of those skiers head west towards the KTMT-FM
transmitter site to access a bowl ski area. During the summer months, the
USFS estimates about 56,000 people visit Mount Ashland, with a significant
percentage also venturing towards the transmitter site. While the USFS was
unable to estimate the number of people who actually approach the tower on
the transmitter site, the USFS does state categorically that "Mt. Ashland
is not remote."
7. On October 22, 2008, at approximately 10:00 a.m. PDT, in response to a
complaint from the USFS concerning high RFR levels at the KTMT-FM
transmitter site, a Portland agent conducted an inspection at the KTMT-FM
transmitter site accompanied by two USFS representatives. The agent
employed a personal RF monitor to identify and mark two areas of concern,
exhibiting high levels of RFR near the antenna site. The first area of
concern measured approximately 22 feet by 24 feet surrounding the anchor
of the north guy wire of the KTMT-FM transmitter tower, approximately 80
feet from the base of the tower. The second area of concern measured
approximately 17 feet by 23 feet, near the power transformer on the south
side of the transmitters building, approximately 27 feet east from the
base of the antenna tower. The agent then employed a spatial averaging
measurement technique, using a calibrated RFR meter and probe, where
measurements in four quadrants are averaged to give a representative
reading for each location. In the first area of concern, the agent
determined that the RFR levels exceeded the public MPE limits, with a RFR
power density measurement of 1.3 mW/cm2 (650% of the public MPE limits).
In the second area of concern, the agent determined that RFR levels
exceeded the public MPE limits, with a RFR power density measurement of
0.72 mW/cm2 (360% of the public MPE limits). The Portland agent observed
no warning signs at or around either area of concern alerting the public
to the excessive RFR levels in each area.
8. On October 23, 2008, the Portland agent conducted a follow-up
inspection with the chief engineer representing Mapleton and the two chief
engineers representing Freedom Broadcasting at the transmitter site. The
agent again employed a personal RF monitor to identify the same two areas
of concern, as determined the day before. Again, the Portland agent
observed no warning signs at or around either area of concern alerting the
public to the excessive RFR levels in each area of concern. With all three
stations transmitting, the agent took readings from the transmitters'
meters and determined the total power output for each station. The agent
then made RFR measurements to establish an overall power density level in
the two areas of concern. The agent employed a spatial averaging
measurement technique, using a calibrated RFR meter and probe, where
measurements in four quadrants are averaged to give a representative
reading for each location. In the first area of concern, measuring
approximately 22 feet by 24 feet, surrounding the anchor of the north guy
wire of the KTMT-FM transmitter tower, approximately 80 feet from the base
of the tower, the overall power density level measured 1.3 mW/cm2 (650% of
the public MPE limits). In the second area of concern, measuring
approximately 17 feet by 23 feet, near the power transformer on the south
side of the transmitters building, approximately 27 feet east from the
base of the antenna tower, the overall power density level measured 0.72
mW/cm2 (360% of the public MPE limits). In coordination with all three
stations, the agent then requested that each station temporarily and
sequentially power off the transmitter. The agent made spatially averaged
RFR power density measurements while each of the transmitters were
powered off in turn, to determine the power density level produced by each
transmitter and to determine which transmitters were producing power
density levels that exceeded 5% of its individual MPE limits at the
identified areas.
9. The measurements taken by the Portland agent on October 23, 2008,
indicated that RFR levels in both areas of concern, described above,
significantly exceeded the Commission's MPE limits for the general public.
Based on the measurements and further calculations, the power density
level contributed by KTMT-FM was 1.29 mW/cm2 (645% of the public MPE
limits) in the first area of concern, and 0.71 mW/cm2 (355% of the public
MPE limits) in the second area of concern. The Portland agent issued an
oral warning to the KTMT-FM chief engineer for violation the Commission's
RFR Rules.
10. Still on October 23, 2008, Freedom Broadcasting's chief engineers
advised the Portland agent that Freedom Broadcasting had retained a
professional electrical engineer in Portland, Oregon to perform RFR
measurements at the transmitter site on October 15, 2008. On November 7,
2008, the Portland agent received an Engineering Report from the
referenced professional electrical engineer retained by Freedom
Broadcasting. In the Freedom Broadcasting RFR Report, the engineer stated
that on October 15, 2008, he had made "measurements of the existing levels
of radio frequency power densities at outside locations surrounding the
KTVL (CH10) transmitter building and tower located on Mt. Ashland in
southern Oregon," found RFR levels that exceeded the FCC public MPE
limits, and concluded that "the primary contributing source of the
excessive RF radiation levels in the uncontrolled public access areas are
emissions from the KTMT-FM four element antenna."
III. DISCUSSION
11. 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.
12. 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. The
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.
13. The inspections conducted by the Portland agent on October 22 and 23,
2008, revealed two publicly accessible areas that exceeded the public RFR
MPE limit; that KTMT-FM was the sole contributor of more than 5% of the
RFR exceeding the public MPE limits; and that Mapleton did not restrict
access to the areas of concern where RFR levels exceeded the public RFR
MPE limits. Although vehicular access to the KTMT-FM transmitter site is
restricted by means of a single strand chain link locked gate and a RF
warning sign, pedestrian access is relatively unrestricted. The public
Mount Ashland Ski Lift Area is approximately 230 meters on the east side
of the KTMT-FM transmitter site. In addition, the USFS has stated that the
KTMT-FM transmitter site is not a remote area. The USFS estimates that
tens of thousands of people visit the Mount Ashland site during the summer
and winter, with some percentage venturing towards the KTMT-FM transmitter
site. Mapleton bears the responsibility to restrict access to those
noncompliant 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.
Although the Portland agent observed four RFR caution signs on the KTMT-FM
transmitter building, and one warning sign on the KTMT-FM transmitter
tower, the agent observed no signs warning the public of the excessive RFR
levels in the easily accessible areas of concern, in which RFR levels
ranged between 350 and 650% of the public MPE limits. As the Commission
has stated in the past, "when a licensee decides to depend on RFR warning
signs rather than physical barriers to ensure that members of the public
do not access areas of RFR in excess of the MPE public limits, the burden
is on the licensee to ensure that the RFR warning signs are plainly
visible to the public from every possible direction that the public may
access the area of concern. The burden is not on the public to attempt to
find RFR warning signs."
14. We find that Mapleton's operation of KMKT-FM exceeded the public RFR
MPE limits in publicly accessible areas and, given the statements made by
Mapleton in Exhibit 13 of its most recent renewal application, that
Mapleton was aware of the high levels of RFR at the KTMT-FM transmitter
site since September 30, 2005, but did not take any corrective actions to
bring the site into compliance, or to restrict public access to the site.
Therefore, we find that Mapleton's violation was willful. The violation
occurred on more than one day, therefore, it was repeated. Based on the
evidence before us, we find that Mapleton apparently willfully and
repeatedly violated Section 1.1310 of the Rules by exceeding the public
RFR MPE limits in areas accessible by the public, and by failing to
adequately take measures to prevent access to areas that exceeded the RFR
exposure limits.
15. The Commission's Forfeiture Policy Statement and Amendment of Section
1.80(b) of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement") 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 Mapleton is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
16. 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, Mapleton License of Medford, LLC 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.
17. 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, Mapleton License of Medford, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
18. 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. Mapleton License of
Medford, LLC, shall also send electronic notification on the date said
payment is made to WR-Response@fcc.gov.
19. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident Agent
Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and must include
the NAL/Acct. No. referenced in the caption. An electronic copy shall be
sent to WR-Response@fcc.gov.
20. 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.
21. 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 Mapleton License of Medford, LLC.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent 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-20050930AWU, Application for Renewal of Broadcast Station
License, Exhibit 13, September 30, 2005 ("Exhibit 13").
Exhibit 13.
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 agent determined the following effective radiated power ("ERP") for
each of the stations at the site: KTMT-FM = 31.62 kW ERP; KTVL (CH 10) =
132 kW ERP; and KTVL-DT (CH 35) = 1.25 kW ERP.
Section 1.1307(b)(3) of the Rules states: "In general, when the guidelines
specified in S: 1.1310 are exceeded in an accessible area due to the
emissions from multiple fixed transmitters, actions necessary to bring the
area into compliance are shared responsibility of all licensees whose
transmitters produce, at the area in question, power density levels that
exceed 5% of the power density exposure limit applicable to their
particular transmitter..." 47 C.F.R. S: 1.1307(b)(3).
47 C.F.R. S:S: 1.1307(b)(3), 1.1310.
McClanathan and Associates, Inc.'s Engineering Report for Freedom
Broadcasting of Oregon Licensee, LLC concerning Radio Frequency Field
Strength and Power Density Measurements at KTVL-TV near Medford, Oregon,
October 15, 2008 ("Freedom Broadcasting RFR Report").
Freedom Broadcasting RFR Report.
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).
See, for example, OET Bulletin 65.
47 C.F.R. S:S: 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional guidance is
provided in OET Bulletin 65.
Americom Las Vegas Limited Partnership, 21 FCC Rcd 14286, 14290 (2006).
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