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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Americom Las Vegas Limited Partnership ) File No. EB-02-DV-094
)
Licensee of FM Radio Station KZTQ )
(Formerly KWNZ) ) NAL/Acct. No. 200332800006
Carson City, Nevada ) FRN 0003-7662-92
Facility ID # 53706 )
MEMORANDUM OPINION AND ORDER
Adopted: November 28, 2006 Released: December 1, 2006
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we deny the
application for review filed by Americom Las Vegas Limited Partnership
("Americom"), licensee of FM radio station KZTQ (Formerly KWNZ),
Carson City, Nevada, of the Forfeiture Order issued May 28, 2004, by
the Chief, Enforcement Bureau ("Bureau"), in the amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Section 1.1310 of the Commission's Rules ("Rules"). The noted
violations involve Americom's failure to comply with the radio
frequency radiation ("RFR") maximum permissible exposure ("MPE") limit
applicable to KZTQ's transmission facilities and failure to adequately
take measures to prevent the public from accessing areas that exceeded
the RFR exposure limits. In this case, we affirm the Bureau's decision
in the Forfeiture Order.
II. BACKGROUND
2. KZTQ's transmission facilities are located on McClellan Peak, near
Carson City, Nevada. The McClellan Peak site is on unfenced, publicly
accessible property managed by the Bureau of Land Management ("BLM"),
approximately 4 kilometers northeast of Carson City. On November 6,
2001, agents from the FCC's San Francisco, California, Field Office
("San Francisco Office") conducted a site inspection at the McClellan
Peak antenna site. There are 13 broadcast stations which transmit from
the McClellan Peak site. During the November 6, 2001, inspection, the
personal RFR monitors worn by the agents began to alarm while in the
vicinity of the KZTQ transmitter site. The personal RFR monitors are
designed by the manufacturer to begin alarming when RFR exposure
levels reach 50 percent of the Commission's occupational exposure
limit. The occupational exposure limit is five times greater than the
public exposure limit. Thus, the alarming indicated that there were
RFR levels in excess of the MPE limit for the general public in the
vicinity of the KZTQ transmitter.
3. On May 1, 2002, the FCC's Denver, Colorado Field Office ("Denver
Office") issued a Letter of Inquiry ("LOI") to Americom and to each of
the 12 other broadcast licensees which transmit from the McClellan
Peak site regarding RFR compliance at the site and advising that a
site inspection would take place on May 15, 2002.
4. On May 14, 2002, FCC agents from the Denver and San Francisco Offices
conducted preliminary measurements in publicly accessible areas
throughout the McClellan Peak site. On May 15, 2002, the agents
returned to the McClellan Peak site and conducted additional
measurements. The measurements taken by the agents on May 15, 2002,
indicated that there were RFR fields in publicly accessible areas at
ground level that exceeded the FCC's MPE limits for the general public
and that KZTQ's operation alone exceeded the MPE limits for the
general public in unfenced areas between the KZTQ transmitter building
and the KZTQ antenna tower.
5. The agents observed that the site was easily accessible to 4-wheel
drive vehicles from a public gravel and dirt roadway off Goni Road.
Two commercial gravel pits were located along the gravel roadway to
the site. An ungated internal dirt road led from the gravel roadway
to the site, with multiple branches to reach the various antenna
structures. The agents observed that there were trails for off-road
4-wheel drive vehicles and all terrain vehicles ("ATVs") along the
gravel roadway and at the site itself. The agents also observed
persons who appeared to be teenagers driving ATVs, ATV tire tracks, a
campfire ring, beer and wine bottles, and other trash indicative of
public use of the BLM site.
6. Additionally, the agents observed that the only signs warning the
public of excessive RFR levels at the KTZQ antenna site were posted at
the front of the site and along the road leading to the site. The
agents also observed that there were no warning signs which could be
seen by persons approaching the unfenced area in which the RFR
exceeded the public MPE limit from the rear of the KZTQ antenna site.
7. Americom submitted its response to the LOI on June 7, 2002 ("LOI
response"). As part of the response, Americom submitted a report of
RFR measurements conducted at the McClellan Peak site on May 15, 2002,
by an Americom consultant. This report shows that RFR fields in an
unfenced area adjacent to the KZTQ tower exceeded the MPE limits for
the general public. Americom stated that out of an abundance of
caution, it had contracted for this location to be fenced.
8. On November 22, 2002, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL") to Americom in the amount of ten thousand
dollars ($10,000) for apparent willful and repeated violations of
Section 1.1310 of the Rules. In its response to the NAL, filed
December 23, 2002 ("NAL response"), Americom sought cancellation of
the proposed monetary forfeiture. Americom argued that there is "only
circumstantial evidence" of recent public use of the area near the
KZTQ transmitter site; that there is "no evidence whatsoever of public
use of the particularized ten square foot area" where Americom
exceeded the RFR MPE limits; that, by providing appropriate signs
warning the public of excessive RFR levels, Americom has in "good
faith" treated the KZTQ transmitter site as "controlled environment"
and implemented a "common sense" approach to RFR compliance which is
consistent with OET Bulletin 65; and that, if it did violate Section
1.1310 of the Rules, the appropriate sanction is admonishment. In its
May 28, 2004, Forfeiture Order, the Bureau rejected these arguments
and imposed a monetary forfeiture of $10,000. In its application for
review, Americom argues that "the resolution of this proceeding hinges
on whether Americom reasonably concluded that the KZTQ Antenna Site .
. . was remote and not likely to be visited by the public, making
tower fencing unnecessary, particularly in light of three posted
warning signs." Americom also argues that its treatment in this
proceeding is the same as that of the licensee in A-O Broadcasting
Corporation, "which was found to have operated at more than 1500
percent above the public RFR exposure limits" and that, if the Bureau
has overruled the "common sense" approach of OET Bulletin 65, it is
obligated to give Americom advance notice of this change but failed to
do so.
III. DISCUSSION
9. In 1996, the Commission amended its rules to adopt new guidelines and
procedures for evaluating the environmental effects of RFR from FCC
regulated facilities, operations or transmitters. The Commission
adopted MPE limits for electric and magnetic field strength and power
density for facilities, operations or transmitters operating at
frequencies from 300 kHz to 100 GHz. The MPE limits, which are set
forth in Section 1.1310 of the Rules, include limits for
occupational/controlled ("occupational") exposure and limits for
general population/uncontrolled ("public") 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 for 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 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. The Commission has
assessed a minimum forfeiture of $10,000 against every licensee that
it has found has willfully and/or repeatedly violated the public RFR
MPE limits.
10. In OET Bulletin 65, the Commission's Office of Engineering and
Technology gave guidance to Commission licensees concerning
controlling exposure to RF fields. When dealing with compliance with
the Commission's public MPE limit, the OET stated that:
Restricting access is usually the simplest means of controlling exposure
to areas where high RF levels may be present. Methods of doing this
include fencing and posting such areas or locking out unauthorized persons
in areas, such as rooftop locations, where this is practical. There may be
situations where RF levels may exceed the MPE limits for the general
public in remote areas, such as mountain tops, that could conceivably be
accessible but are not likely to be visited by the public. In such cases,
common sense should dictate how compliance is to be achieved. If the area
of concern is properly marked by appropriate warning signs, fencing or the
erection of other permanent barriers may not be necessary.
11. Americom argues that it "reasonably and in good faith" concluded that
the posting of RFR warning signs near the KZTQ's antenna site was a
"common sense approach at such a remote mountain top location."
Americom supports its belief that the site was remote and not likely
to be visited by the public by again presenting the affidavits
presented in its response to the NAL in which a County Sheriff and two
individuals with work experience at the site state that, in their
experience, the public is unlikely to visit the site. The evidence
gathered by the FCC agents, however, included:
[T]rash in at least four locations throughout the approximately . mile
long area on McClellan Peak Ridge where the transmission towers are
located; ATV tracks throughout that area; and a campfire ring in the same
area. The trash observed by the FCC agents included beer and wine bottles
-- not the kind of trash likely to be left by workers who service
transmission facilities. The tire tracks observed by the FCC agents were
ATV tracks; these tracks were not made by the kind of vehicles that would
be used to service the transmission sites on McClellan Peak Ridge.
Finally, the agents also observed ATV use by at least two drivers during
the inspection of KWNZ [KZTQ].
Despite Americom's assertion that the evidence is in dispute in this
proceeding, we find that Americom has not presented any evidence which
contradicts the FCC agents' observations. The June 6, 2002, letter of
Storey County Sheriff Patrick A. Whitten indicates that his office
receives "little to no call volume" from McClellan Peak and "is aware of
no significant foot traffic at the site." The letter contains no
information about whether Sheriff Whitten observed any ATV use, ATV
tracks, trash or campfire rings and does not refute the observations of
the FCC agents. The December 20, 2002, declaration of KZTQ's engineering
consultant, Stephen R. Weber, indicates that Mr. Weber initially did not
see any trash or fire rings "in the immediate vicinity of the site" and
that later he could find no fire ring on McClellan Peak and observed trash
that was "sparse, old, or located under shrubbery nowhere near the KWNZ
[KZTQ] tower site." The December 21, 2002, declaration of McClellan Peak
Ridge property owner James Lencioni indicates he has observed ATV use but
no fire rings or trash on McClellan Peak Ridge. Because Messrs. Weber and
Lencioni do not state whether they made any observations on or near the
date of the FCC inspection, their failure to observe all the signs of
public use reported by the FCC agents does not contradict the agents'
observations. In fact, the declarations of Mr. Lencioni and Mr. Weber
partially confirm the agents' observations and bolster the inference from
those observations that there is public use of McClellan Peak.
12. Assuming arguendo that we accept Americom's argument that the KZTQ
transmitter site is so remote as to only require RFR warning signs,
pursuant to OET Bulletin 65, Americom would still be liable for a
violation of Section 1.1310 of the Rules, because its signage at the
site was inadequate. As the Enforcement Bureau stated in the
Forfeiture Order, "[w]hen the agents took the RFR measurements, they
looked for warning signs; the only warning signs they observed were at
the front of the building at [KZTQ's] transmitter site, where they
would not be seen by persons approaching the area affected by
excessive RFR from a different direction." Americom argues that the
Forfeiture Order should not credit the agents' failure to observe
multiple signs as proof that only one sign existed. Americom, however,
misses the point. There may very well have been more than one RFR
warning sign on McClellan Peak on the two days that the agents took
RFR measurements. But the agents were in the area of concern which
exceeded the public MPE limit and looked for additional signs in the
immediate vicinity and only saw the sign posted at the front of the
KZTQ building. Therefore, any member of the public who came upon the
accessible area of concern which exceeded the public MPE limits from
any direction other than from the front of the KZTQ building would
also have failed to see any RFR warning signs. In remote areas, 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. Common sense dictates no less.
13. Americom also asserts that its treatment in this proceeding is the
same as that of the licensee in A-O Broadcasting Corporation, supra,
"which was found to have operated at more than 1500 percent above the
public RFR exposure limits." The Commission determined in A-O
Broadcasting Corporation that $10,000 is an appropriate base
forfeiture amount for violation of the RFR MPE limits. An RFR
violation need not be as significant as A-O Broadcasting Corporation's
violation to warrant imposition of the full $10,000 base forfeiture
amount. We conclude Americom's violation of the RFR MPE limits
warrants imposition of the full base forfeiture amount.
14. Americom also argues that, if the Bureau overruled the "common sense"
approach of OET Bulletin 65, it was obligated under Trinity
Broadcasting of Florida v. FCC, 211 F.3d 618 (D.C. Cir. 2000), to give
Americom advance notice of the change but failed to do so. We have not
overruled the "common sense" approach of OET Bulletin 65. As indicated
above, we found that the "common sense" guidelines set forth in OET
Bulletin 65 for determining the applicable MPE limits in remote areas
require application of the public MPE limits to the KZTQ antenna site
and, therefore, require fencing or another permanent barrier to
protect the public from exposure to RFR exceeding the public MPE
limits. Even in those situations where the "common sense" approach of
OET Bulletin 65 allows the application of the public MPE limits, the
licensee must provide appropriate signs warning the public of
excessive RFR levels. Americom did not provide such signs.
15. We have examined Americom's application for review pursuant to the
statutory factors prescribed by Section 503(b)(2)(D) of the Act, and
in conjunction with the Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, as well. As a result of our review, we conclude that
Americom willfully and repeatedly violated Section 1.1310 of the Rules
and that the appropriate forfeiture amount is $10,000.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Rules, Americom's application for review of the Forfeiture Order IS
DENIED and the Forfeiture Order IS AFFIRMED.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12^th Street, SW, Room 1A625, Washington, D.C. 20554.
18. IT IS FURTHER ORDERED THAT a copy of this Order shall be sent by
first class mail and certified mail, return receipt requested, to
Americom's counsel Dennis P. Corbett, Esq., and Phillip A. Bonomo,
Esq., Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Subsequent to the initiation of this proceeding, on February 26, 2004, the
station's call sign was changed to KZTQ.
Americom Las Vegas Limited Partnership, 19 FCC Rcd 9643 (Enf. Bur. 2004)
("Forfeiture Order").
47 C.F.R. S 1.1310.
See LOI response, Attachment 2; see also Application for Review,
Attachment - Response to Notice of Apparent Liability for Forfeiture at 3,
note 4.
Americom Las Vegas Limited Partnership, 17 FCC Rcd 26689 (Enf. Bur. 2002)
(finding that, based on RFR measurements conducted in May 2002 by FCC
agents and by Americom's consultant, the operation of KZTQ (formerly KWNZ)
created RFR fields that exceeded the RFR exposure limits for the public in
unfenced, publicly accessible areas).
OET Bulletin 65, "Evaluating Compliance with FCC Guidelines for Human
Exposure to Radiofrequency Electromagnetic Fields" (August 1997) ("OET
Bulletin 65").
Application for Review at 2 - 3.
17 FCC Rcd 24184 (2002); Forfeiture Order 18 FCC Rcd 27069 (2003).
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").
See 47 C.F.R. S 1.1310, Table 1.
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, e.g., A-O Broadcasting Corporation, 18 FCC Rcd 27069 (2003), recon.
denied, 20 FCC Rcd 756 (2005); and Radio One Licenses, LLC, et. al, 19 FCC
Rcd 23922 (2004), recon. denied, FCC 06-173 (released December 1, 2006).
OET Bulletin 65 at 53 (footnotes omitted).
Even if we accept Americom's assertion that the ATV tracks, trash, and
campfire rings could have been the product of maintenance personnel,
Americom has provided no evidence that these maintenance personnel, who
were exposed as a consequence of their employment, were fully aware of the
potential for exposure or could exercise control over their exposure.
Consequently, Section 1.1310 of the Rules requires that the public MPE
limit be applied to these maintenance personnel as well.
19 FCC Rcd at 9645.
Application For Review, Attachment 2.
Americom asserts that the Bureau alleged, in its May 1, 2002, LOI that
information from law enforcement officials indicated the public frequently
visits the McClellan Peak antenna site but contends the Bureau has not
reasserted this allegation since Americom submitted Sheriff Whitten's
letter. Application For Review, note 8. The Bureau's failure to reassert
the allegation is of no significance because the FCC agents' observations
- unrefuted by Sheriff Whitten - contradict the licensee's contention and
are a sufficient basis for our being unable to find that the KZTQ antenna
site is "not likely to be visited by the public." See Paragraph 12, supra.
Application For Review, Attachment 3.
Application For Review, Attachment 4.
19 FCC Rcd at 9646.
In A-O Broadcasting Corporation, supra, United States Forest Service
personnel, who were unaware of the risk, had unrestricted access to an
area in an observation tower that exceeded the RFR MPE limits by over
1000%.
See, e.g., Radio One Licenses, LLC, et. al, 19 FCC Rcd 23922 (2004),
recon. denied, FCC 06-173 (released December 1, 2006).
The case cited by Americom, Melody Music, 345 F. 2d 730 (D.C. Cir. 1965),
is inapplicable. In that proceeding, the Court remanded the case to the
Commission because the Commission did not adequately explain why the
appellant was treated differently from another Commission licensee. In
this case, we have explained why Americom was treated similarly to A-O
Broadcasting.
47 U.S.C. S 503(b)(2)(D).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.115(g).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission FCC 06-174
6
2
Federal Communications Commission FCC 06-174