Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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 )

                            ORDER ON RECONSIDERATION

   Adopted: November 26, 2007 Released: November 29, 2007

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Order on Reconsideration  ("Order"), we dismiss the petition
       for reconsideration ("petition") filed by Americom Las Vegas Limited
       Partnership ("Americom"), licensee of FM radio station KZTQ (Formerly
       KWNZ), Carson City, Nevada, of the Commission's Memorandum Opinion and
       Order  issued December 1, 2006 ("MO&O"). In that MO&O, the Commission
       denied Americom's application for review 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. As discussed below, we dismiss Americom's
       petition because it does not comply with the requirements of Section
       1.106(b)(2) of the Rules, and is therefore procedurally defective.

   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. 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.

    3. 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 an unfenced area between the KZTQ transmitter
       building and the KZTQ antenna tower.

    4. 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.

    5. 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.

    6. 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.

    7. 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 was "only
       circumstantial evidence" of recent public use of the area near the
       KZTQ transmitter site; that there was "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 particular, the
       Bureau concluded that there was ample evidence of recent public use of
       the area near the KZTQ transmitter site; that public use of the area
       near the KTZQ transmitter site was sufficient to establish the
       applicability of the public exposure limits; that Americom did not
       have signs that sufficiently warned the public; and that a monetary
       forfeiture - not an admonishment -- is the appropriate sanction for
       Americom's violations.

    8. In its application for review, Americom argued 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 argued that its treatment
       in this proceeding should not be the same as that of the licensee in
       A-O Broadcasting Corporation, which also was assessed a monetary
       forfeiture of $10,000, but was found to have operated further above
       the public RFR exposure limits than Americom 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. In its MO&O released December 1, 2006, the Commission rejected
       these arguments and affirmed the Bureau's Forfeiture Order.  In
       particular, the Commission concluded that Americom did not present any
       evidence which contradicts the FCC agents' observations indicating
       public use of the KZTQ antenna site; that Americom's signs were not
       adequate to warn the public; that 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 and that there
       was no overruling of the "common sense" approach of OET Bulletin 65.

    9. In its petition for reconsideration of the Commission's MO&O, Americom
       reiterates arguments already rejected by the Commission. Specifically,
       Americom argues  that the signage at Americom's transmitter site was
       compliant with the "common sense" approach set forth in OET Bulletin
       65, that no forfeiture is appropriate because Americom lacked notice
       of the "new" RFR standard created by the rulings in this case, and
       that the public is not likely to visit Americom's transmitter site.

   10. Americom also raises two new arguments. First, Americom claims that
       "[i]n analogous contexts, where the facts are unclear or disputed, the
       FCC has stayed its enforcement hand."   Second,  Americom argues that
       the site owner, BLM  ,was obligated to "encourage `common solutions'
       to RFR issues" at Americom's site but did not do so, and therefore  a
       forfeiture was not appropriate in this case because "the government
       limited its role to enforcement, forsaking proactive involvement." 

   III.  DISCUSSION

   11. Section 1.106(b)(2)  of the Rules provides that where the Commission
       has denied an application for review, a petition for reconsideration
       will be entertained only if one or more of the following circumstances
       are present:

   (i) the petition relies on facts which relate to events which have
   occurred or circumstances which have changed since the last opportunity to
   present such matters, or

   (ii) the petition relies on facts unknown to petitioner until after his
   last opportunity to present such matters which could not, through the
   exercise of ordinary diligence, have been learned prior to such
   opportunity.

   Section 1.106(b)(3) of the Rules  authorizes the Bureau to dismiss as
   repetitious "[a] petition for reconsideration of an order denying an
   application for review which fails to rely on new facts or changed
   circumstances."

   12. Americom makes no attempt to establish that its petition meets the
       criteria of Section 1.106(b)(2) of the Rules. As discussed below,
       Americom does not rely on any facts or events that occurred or
       circumstances that have changed since its last opportunity to present
       such matters or that were unknown to Americom and could not have been
       learned through the exercise of ordinary diligence. Americom's
       petition must, therefore, be dismissed as repetitious.

   13. Americom's  arguments that the signage at Americom's transmitter site
       was compliant with the "common sense" approach set forth in OET
       Bulletin 65, that no forfeiture is appropriate because Americom lacked
       notice of the "new" RFR standard created by the rulings in this case,
       and that the public is not likely to visit Americom's transmitter
       site, reiterated again in its petition for  reconsideration,  do not
       rely on any facts or events that occurred or circumstances that have
       changed since its last opportunity to present such matters or that
       were unknown to Americom and could not have been learned through the
       exercise of ordinary diligence. Americom's new arguments also fail to
       meet the standard set forth in Section 1.106(b)(2).

   14. The only newly presented "fact" in either of these arguments is the
       claim that the BLM did not take a proactive role in achieving
       compliance.  Americom had every opportunity to present this claim to
       the Bureau before filing its application for review but did not do so.
       We find, accordingly, that Americom's new arguments do not rely on any
       facts or events that occurred or circumstances that have changed since
       its last opportunity to present such matters or that were unknown to
       Americom and could not have been learned through the exercise of
       ordinary diligence.

   15. In sum, Americom has not met the requirements of Section 1.106(b)(2)
       of the Rules. Its petition for reconsideration must therefore be
       dismissed.

   IV. ORDERING CLAUSES

   16. Accordingly, IT IS ORDERED that, pursuant to Sections 1.106(b)(2) and
       (3) of the Rules, Americom's petition for reconsideration of the
       Commission's MO&O IS DISMISSED.

   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 credit card through the Commission's Debt and Credit Management
       Center at (202) 418-1995, or 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 12th 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

   Kris Anne Monteith

   Chief, Enforcement Bureau

   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, Memorandum Opinion and Order, 21
   FCC Rcd 14286 (2006) ("MO&O").

   Americom Las Vegas Limited Partnership, Forfeiture Order, 19 FCC Rcd 9643
   (Enf. Bur. 2004) ("Forfeiture Order").

   47 C.F.R. S: 1.1310.

   47 C.F.R. S: 1.106(b)(2).

   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.

   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, Notice of Apparent Liability for
   Forfeiture, 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").

   Forfeiture Order at 9645-9646.

   Application for Review at 2 - 3.

   A-O Broadcasting Corporation, Notice of Apparent Liability, 17 FCC Rcd
   24184 (2002); forfeiture ordered,  Forfeiture Order,  18 FCC Rcd 27069
   (2003).

   MO&O at 14289-14291.

   Petition at 1-5.

   Petition at 2.

   Petition at 1-3.

   Petition at 3-4.

   Petition at 4.

   Petition at 4-5.

   47 C.F.R. S: 1.106(b)(3).

   See, e.g., Hexagram, Inc, Order on Reconsideration, 22 FCC Rcd 1795
   (Wireless Tel. Bur., Mobility Div. 2007) (petitioner failed to support its
   arguments with any new facts or circumstances that changed after the
   filing of its application for review); Alvin Lou Media, Inc., Order on
   Reconsideration, 20 FCC Rcd 17234, 17235 (Media Bur., Audio Div. 2005)
   (petitioner did not cite to facts or events that occurred or circumstances
   that have changed since petitioner's last opportunity to present such
   matters or that were unknown to petitioner and could not have been learned
   through the exercise of ordinary diligence); James Kay, Jr., Order on
   Reconsideration,  19 FCC Rcd 2938, 2940 (Wireless Tel. Bur., Mobility Div.
   2004) (argument did not rely on any new facts or changed circumstances),
   affirmed, Order, 20 FCC Rcd 12228 (2005); and Modification and
   Clarification of Policies and Procedures Governing Siting and Maintenance
   of Amateur Radio Antennas and Support Structures, and Amendment of Section
   97.15 of the Commission's Rules Governing the Amateur Radio Service,
   Memorandum Opinion and Order, 17 FCC Rcd 19408, 19412 (Wireless Tel. Bur.,
   Pub. Safety and Priv. Wireless Div., 2002) (argument did not relate to any
   new facts or changed circumstances requiring reconsideration of
   Commission's Order).

   Petition at 2.

   Petition at 1-3.

   Petition at 3-4.

   47 U.S.C. S: 504(a).

   See 47 C.F.R. S: 1.1914.

   Federal Communications Commission DA 07-4720

   6

   2

   Federal Communications Commission DA 07-4720