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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Entravision Holdings, LLC File No.: EB-04-TP-161
)
Licensee of Station WVEA-LP NAL/Acct. No.: 200532700004
)
Tampa, Florida FRN: 0001529627
)
Facility ID # 3602
)
)
MEMORANDUM OPINION AND ORDER
Adopted: December 19, 2007 Released: December 21, 2007
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we grant in part and
deny in part the petition for reconsideration filed by Entravision
Holdings, LLC ("Entravision"), licensee of station WVEA-LP, 662-668 MHz,
in Tampa, Florida of the Forfeiture Order issued February 6, 2007. In the
Forfeiture Order, the South Central Region ("Region") of the Enforcement
Bureau imposed a monetary forfeiture in the amount of $25,000 on
Entravision for the willful and repeated violation of Section 1.1310 of
the Commission's Rules ("Rules"). The noted violation involved
Entravision's failure to comply with radio frequency radiation ("RFR")
maximum permissible exposure ("MPE") limits applicable to facilities,
operations, or transmitters.
II. BACKGROUND
2. The RFR MPE limits, which are set forth in Section 1.1310 of the
Rules, 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. Entravision certified WVEA-LP was in compliance with the RFR MPE
limits in its application for a minor change to its licensed facility
at the Park Tower Office Building ("Park Tower") located at 400 North
Tampa Street, Tampa, Florida ("WVEA-LP 2004 Modification
Application"). An exhibit to the application stated that access to the
transmitting site would be restricted and properly marked with warning
signs. In addition, the exhibit stated that an agreement among the
licensees at Park Tower containing appropriate measures to assure
worker safety would be in effect in the event that workers or
authorized personnel enter the restricted area.
4. On May 25, 2004, agents from the Commission's Tampa Office of the
Enforcement Bureau ("Tampa Office"), in response to a complaint,
inspected the Park Tower rooftop. Access to the main rooftop was
restricted to individuals with special keycards. Signs on the rooftop
access doors stated that areas on the rooftop exceed the Commission's
public RFR limits. However, the signs did not indicate which areas on
the rooftop exceeded the public or general population RFR limits. The
agents continued to the penthouse rooftop, which was restricted by an
additional lock controlled by the front desk and accessed without
passing by the warning signs on the main rooftop access doors. There
were no RFR warning signs found on the penthouse rooftop, penthouse
rooftop access door to the stairwell, inside the stairwell, or on the
hatch itself. While surveying the penthouse rooftop, a Tampa agent,
using a calibrated RFR meter, found that approximately 75% of the
penthouse rooftop exceeded the general population/uncontrolled RFR MPE
limit. The agent also found an unmarked and un-posted area within an
8-10 foot radius of a tower containing a UHF TV antenna, later
identified as belonging to station WVEA-LP, exceeding the
occupational/controlled RFR MPE limit and which also greatly exceeded
the general population/uncontrolled RFR MPE limit. Park Tower's chief
engineer, who accompanied the agents on this inspection, stated he and
his personnel were not aware of areas exceeding the general population
and occupational limits on the penthouse rooftop pointed out to him by
the agent. The building's chief engineer stated that he and his
personnel access this rooftop on a fairly regular basis to inspect it
for maintenance and to conduct roofing repairs. He also stated that
neither he nor any of his maintenance crew or subcontractors had
received any training with respect to RFR hazards.
5. On June 18, 2004, a Tampa Office agent returned to the penthouse
rooftop of Park Tower, gathered more information, and made additional
measurements. The agent found power density levels in excess of the
RFR MPE general population and occupational limits, similar to those
detected on May 25, 2004. There were no RFR warning signs posted in
the stairwell that accessed the penthouse rooftop or on the penthouse
rooftop itself.
6. On July 1, 2004, the WVEA-LP station engineer accompanied Tampa agents
on their inspection of the penthouse rooftop. Before conducting any
testing, the station engineer stated he knew that areas near his
antenna exceeded the occupational limits and that the area should have
been posted with warning signs to alert those accessing the roof of
the hazard. The Tampa agents then conducted on-air and off-air
measurements to determine the level of WVEA-LP's contribution. With
WVEA-LP on the air, the un-posted, unmarked area near the WVEA-LP
antenna exceeded the occupational/controlled RFR MPE limit and also
greatly exceeded the general population/uncontrolled RFR MPE limit,
consistent with the agents' May 25, 2004 measurements. When WVEA-LP
was taken off the air, the agents' measurements revealed that WVEA-LP
was responsible for the majority of both the general
public/uncontrolled RFR MPE limit and the occupational/controlled RFR
MPE limit. The agents warned the station engineer of this RFR
violation. The agent informed the WVEA-LP engineer that to comply with
the RFR requirements the station should post warning signs in the
stairwell entrance and the rooftop to identify the areas exceeding the
RFR limits, especially those exceeding the occupational limit. The
agent also suggested that the station work with the building's chief
engineer to restrict access to the specific area exceeding the
occupational limits and only allow those having RFR training to access
the area. Finally, the agent suggested that, in addition to the
required RFR training, the station could offer building workers, who
access the rooftop, individual RFR warning devices.
7. On July 16, 2004, Tampa agents conducted another inspection of the
penthouse rooftop. Entravision placed a small, framed caution sign in
the stairwell to the penthouse roof hatch that listed contact
information for the station engineer. Entravision marked with yellow
paint the penthouse rooftop area exceeding the occupational/controlled
RFR MPE limit, but did not place warning signs on the penthouse
rooftop itself. Agents conducted measurements similar to those
conducted on July 1 with the four licensees located at the site. With
all four stations on the air, the area near the WVEA-LP antenna
exceeded the occupational/controlled RFR MPE limit and also greatly
exceeded the general population/uncontrolled RFR MPE limit, consistent
with the agents' May 25, 2004, and July 1, 2004, measurements. After
station WVEA-LP was taken off the air, the agents determined that
WVEA-LP was responsible for the majority of RFR which exceeded both
the general public/uncontrolled RFR MPE limit and the
occupational/controlled RFR MPE limit. The station engineer for
WVEA-LP was warned by the Tampa agents that the sign posted in the
stairwell was inadequate due to its size and its poor visibility in
the darkened stairwell. The agents again explained to the station
engineer the RFR requirements.
8. On July 20, 2004, a Tampa agent contacted the WVEA-LP station engineer
to discuss the July 16th inspection. The station engineer stated he
had not yet posted a sign on the rooftop or spoken with the building's
chief engineer. The agent reminded the station engineer of the
station's responsibility to comply with the Commission's RFR
requirements.
9. On August 17, 2004, an agent re-inspected the penthouse rooftop of
Park Tower. There was no sign posted on the penthouse rooftop as
requested on July 1, 16, and 20 or on the tower itself as requested on
July 16, and 20. The building's chief engineer stated the WVEA-LP
engineer spoke to him regarding the yellow lines painted on the roof,
but had not discussed any policy to limit rooftop access only to those
with RFR training.
10. On September 30, 2004, agents re-inspected the penthouse rooftop. The
agents found power density levels in excess of the RFR MPE general
population and occupational limits, similar to those previously
detected. Entravision had placed a sign on its tower that cautioned
workers that the yellow striped area exceeded safe occupational
levels. The sign, however, did not list any station contact
information to enable workers to inquire as to the level of the RFR on
the penthouse rooftop.
11. On November 5, 2004, the building's chief engineer contacted the Tampa
office and stated that station WVEA-LP told him that the transmitter
power had been reduced and the penthouse rooftop was now well below
the occupational limits. Agents made measurements the same day and
confirmed there were no areas on the penthouse rooftop that exceeded
the occupational/controlled RFR MPE limit. There were areas, however,
that were still well above the general population/uncontrolled limits.
12. On January 5, 2005, the Tampa Office issued a NAL to Entravision in
the amount of $25,000 for the apparent willful and repeated violation
of Section 1.1310 of the Rules. Entravision filed a response to the
NAL on February 24, 2005, requesting that the forfeiture be cancelled
or reduced. On February 6, 2007, the Region released a Forfeiture
Order assessing a monetary forfeiture of $25,000 against Entravision
for willful and repeated violation of Section 1.1310 of the
Commission's Rules by failing to comply with RFR MPE limits applicable
to facilities, operations or transmitters. The Region determined that
the general population MPE limit applied to the penthouse rooftop
because Entravision failed to ensure that workers and employees with
access to the penthouse roof where the RFR MPE was exceeded were fully
aware of their potential for exposure or allowed to exercise control
over that exposure. Notwithstanding Entravision's assurance to the
Commission in a 2004 filing that the site would be properly marked
with warning signs and appropriate measures would exist to assure
worker safety, Entravision failed to appropriately erect warning signs
on, and restrict access to, an area on the penthouse rooftop which
exceeded the general population/uncontrolled RFR MPE limit. The Region
also rejected Entravision's assertion that its remedial actions to
correct the violation after the field agent's inspection warranted a
reduction in the proposed forfeiture, finding instead, Entravision's
lack of prior effort to ensure worker safety particularly egregious.
The Region received Entravision's petition for reconsideration on
March 8, 2007, requesting reduction or cancellation of the forfeiture.
III. DISCUSSION
13. Reconsideration is appropriate where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts or changed circumstances not known or not
existing until after the petitioner's last opportunity to present such
matters. A petition for reconsideration that reiterates arguments that
were previously considered and rejected will be denied.
14. In its petition for reconsideration, Entravision takes issue with the
Region's characterization of its actions. Entravision asserts that it
cooperated fully with the agents from the Tampa Office and that it
complied with all requests in a timely manner. Contrary to the agent's
notes of the inspections, Entravision states that on July 1, 2004, the
agent only asked Entravision to place a warning sign in the stairwell
to the penthouse rooftop, which it did on July 1. Entravision claims
that it followed-up an email with a picture of the framed caution sign
with a telephone call to the agent who purportedly indicated that the
sign was fine. Entravision also states that, on its own initiative, it
marked off with yellow paint the area exceeding the
occupational/controlled limit on the penthouse rooftop by July 2,
2004. Entravision recalls discussing the placement of a warning sign
on the penthouse rooftop on July 16, 2004, but that the agent stated
this was not an urgent matter. Entravision also denies that the agent
informed it on July 16 that the framed caution sign in the penthouse
rooftop stairwell was inadequate. In addition, Entravision states that
it informed the Park Tower landlord about the RFR on the penthouse
rooftop via email on July 2, 2004. Accordingly, Entravision requests
that the forfeiture be cancelled or at least reduced to the base
forfeiture amount.
15. Assuming arguendo that Entravision's recollection of its discussions
with the agent from the Tampa Office and its descriptions of its
actions are correct, we find no grounds upon which to cancel the
forfeiture. All of Entravision's actions with respect to the excessive
RFR on the penthouse rooftop occurred after being informed of the RFR
violation by the agent from the Tampa Office. As the Region stated in
the Forfeiture Order, licensees are expected to take corrective action
upon being advised of a violation, and such efforts do not warrant
reduction or cancellation of the forfeiture. Moreover, Entravision
does not deny that: (1) it certified in the WVEA-LP 2004 Modification
Application that access to the transmitting site would be restricted
and properly marked with warning signs and that measures to assure
worker safety would be in effect in the event that workers or
authorized personnel enter the restricted area; (2) its transmitter
was primarily responsible for RFR on the penthouse rooftop which
exceeded both the general public/uncontrolled RFR MPE limit and the
occupational/controlled RFR MPE limit; (3) agents from the Tampa
Office measured RFR levels on the penthouse rooftop in excess of the
general public/uncontrolled and occupational/controlled RFR MPE limits
on May 25, June 18, and July 1, 2004; (4) prior to the start of the
July 1, 2004 inspection, its station engineer stated he knew that
areas near his antenna exceeded the occupational limits and that the
area should have been posted with warning signs to alert those
accessing the roof of the hazard; and (5) prior to July 1, 2004, there
were no RFR warning signs on or near the penthouse rooftop and no
yellow markings to inform workers of the specific areas in excess of
the occupational/controlled limits. Accordingly, it is undisputed that
prior to July 1, 2004, workers, who entered the penthouse rooftop area
and were not informed of the areas exceeding the general and
occupational limits, were not fully aware of the potential for
exposure and could not exercise control over their exposure. It is
also undisputed that Entravision did not speak directly to any workers
regarding the RFR levels on the penthouse rooftop. Therefore, the
general public/uncontrolled limits applied to the penthouse rooftop.
Accordingly, Entravision willfully and repeatedly violated Section
1.1310 of the Rules by creating RFR fields in excess of the general
public MPE limits and failing to adequately warn workers of the
danger.
16. Entravision also asserts that the requirements contained in Section
1.1310 of the Rules are not yet universally understood, due to a
pending rulemaking, and cannot be construed as imposing training
requirements upon licensees as an official enforceable RFR obligation.
Entravision argues that because the pending 2003 rulemaking proposes
to explain in a note to Section 1.1310 of the Rules that "fully aware"
means that an exposed individual has received written and verbal
information concerning the potential for RF exposure and has received
training regarding appropriate work practices relating to controlling
or mitigating his or her exposure, the Commission cannot impose a
civil liability on a licensee based on that uncertain standard. We
disagree that the Region held Entravision to an uncertain or
unenforceable standard or that the Region based its determination of
liability on a proposed standard.
17. The RFR rules were adopted by the Commission in 1996, licensee
responsibilities were reiterated and clarified by the Commission in
1997, compliance guidance was provided by the Commission's Office of
Engineering and Technology ("OET") in 1997, public notice of the
deadline for all licensees to be in compliance with the MPE standards
was provided in 2000, and the first civil liability for violation of
these rules was proposed in 2002. These important public safety and
environmental rules have very specific maximum permissible exposure
limits for two specifically defined populations. 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 exposed as a consequence of
their employment may not be fully aware of the potential for exposure
or cannot exercise control over their exposure.
18. That the Commission proposed to explain that "fully aware" for a
worker means receipt of verbal and written information and also
training on mitigating and controlling exposure, does not alter the
basic requirement that has existed in the rules since 1996, and for
which compliance guidance was provided by the Commission in 1997. In
OET Bulletin 65, the OET published guidance for 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.
Moreover, the Commission stated in 1997 that "responsibilities pertaining
to RF electromagnetic fields properly belong[] with our licensees and
applicants, rather than with site owners." Consequently, we cannot accept
Entravision's attempt to obfuscate its responsibilities by suggesting that
the Region held it liable for a civil forfeiture for failing to provide
written and verbal information and training to all workers potentially
exposed to RF on the penthouse rooftop. The critical facts are not in
dispute. Prior to the inspection, Entravision placed a warning sign at the
entrance to the main rooftop and had a conversation with the Park Tower
building management about the "RFR on the roof." The warning sign was not
near the separate entrance to the penthouse rooftop and did not specify
which areas on the main rooftop or penthouse rooftop exceeded the general
limits. Thus, this written sign could not provide basic awareness of the
nature of the RFR levels on the penthouse rooftop. Other than the
existence of the sign leading to the main rooftop, and conversations with
the Park Tower building management, Entravision failed to produce any
evidence that it ensured that affected workers and employees had awareness
of the high RFR fields on the penthouse rooftop, let alone that the
affected workers and employees were "fully aware" of their potential
exposure. Therefore, the fact that the Commission has proposed to
explicitly define "fully aware" in a rulemaking is irrelevant to the
Region's finding that Entravision violated Section 1.1310 of the Rules.
Entravision violated the rules because it failed to provide workers any
awareness of the RFR on the penthouse rooftop, not because it failed to
provide RFR training to workers.
19. Entravision also argues that civil liability is not appropriate where
the standards in question are too uncertain to be properly
enforceable, and cites to Rollins Environmental Services, Inc., v.
Environmental Protection Agency("Rollins") and Diamond Roofing Company
v. Occupational Safety and Health Review Commission ("Diamond"). Both
cases, however are distinguishable from the instant case. In Rollins,
the United States Court of Appeals for the District of Columbia
Circuit found that a $25,000 penalty imposed upon Rollins
Environmental Services by the EPA was not justified because it
penalized Rollins for violating a rule without first providing
adequate notice of the substance of the rule. In Diamond, the United
States Court of Appeals for the Fifth Circuit determined that a
citation issued against Diamond Roofing Company by the Secretary of
Labor must be vacated because the Secretary failed to state with
ascertainable certainty what was meant by the regulations at issue.
Specifically, Diamond was cited for failing to install a guardrail on
an "open-sided roof" when the phrase "open-sided roof" was not
contained in the regulation which required the installation of the
guardrail. In the present case, as detailed above, the Commission has
made it clear with ascertainable certainty, in both Section 1.1310 of
the Rules, and in its published guidance, that workers must be made
fully aware of the potential for exposure and must be able to exercise
control over their exposure. The Commission has published guidance
that this can be achieved by appropriate signage at an area or by
restricting access to that area, or both. Because Entravision had
notice of these requirements, and failed to successfully do either, we
find that neither Rollins nor Diamond compels us to reduce or cancel
the forfeiture assessed by the Region.
20. Finally, Entravision asserts that its forfeiture should be reduced,
because its case is similar to Infinity Broadcasting, a licensee,
which maintains a transmitter on the penthouse rooftop and which
received a $10,000 forfeiture for violating Section 1.1310 of the
Rules. Entravision also argues that the Region failed to take into
consideration its good faith efforts to comply with the Commission's
Rules. We disagree that that Region failed to take Entravision's
efforts into consideration. In the Forfeiture Order, the Region
specifically stated that it declined to reduce the forfeiture amount
based on Entavision's good faith efforts because all of Entravision's
good faith "efforts took place after, and because of, inspections by
the Tampa agents." However, we agree with Entravision that the
appropriate forfeiture amount here is $10,000. This is consistent with
the Commission's determination in other RFR enforcement actions.
Consequently, we reduce the forfeiture amount to $10,000.
21. We have considered the arguments raised by the Entravision in its
petition for reconsideration. We grant that petition to the extent
indicated herein and deny it all other respects.
V. ORDERING CLAUSES
22. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Entravision Holdings, LLC's petition for
reconsideration of the February 6, 2007 Forfeiture Order IS hereby
GRANTED IN PART AND DENIED IN PART.
23. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Entravision
Holdings, LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful and repeated violation of
Section 1.1310 of the Rules.
24. Payment of the $10,000 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 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
25. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Entravision
Holdings, LLC at its address of record and its counsel, Barry
Friedman, Thompson Hine LLP, 1920 N Street NW, Suite 800, Washington,
DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
Entravision Holdings, LLC, 22 FCC Rcd 2279 (EB 2007) ("Forfeiture Order").
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), ("Guidelines Report and Order") 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 C.F.R. S: 1.1310.
47 C.F.R. S: 1.1310, Note 1 to Table 1.
Id.
47 C.F.R. S: 1.1310, Note 2 to Table 1.
See, for example, Office of Engineering and Technology, Evaluating
Compliance with FCC Guidelines for Human Exposure to Radiofrequency
Electromagnetic Fields (1997) ("OET Bulletin 65").
File No. BPTTL-2003008ABP, granted January 20, 2004.
Specifically, the exhibit stated that "[s]uch measures will include
reducing the average exposure by spreading out the work over a longer
period of time, wearing `accepted' RFR protective clothing and/or RFR
exposure monitors or scheduling work when the stations are at reduced
power or shut down." WVEA-LP 2004 Modification Application, RFR Exhibit at
4.
Another station's transmitter was found to produce power density levels
that exceeded 5% of the power density exposure limit applicable to its
particular transmitter. This station is also responsible for ensuring the
penthouse rooftop's compliance with the RFR limits. See 47 C.F.R. S:
1.1307(b)(3).
Such information allows workers who are fully aware of the potential for
their exposure to make informed decisions and exercise control over their
exposures. See 47 C.F.R. S: 1.1310, Note 1 to Table 1. See also OET
Bulletin 65 at 55 - 59.
Entravision requested an extension to submit its response to the NAL,
which was granted by the Region.
Forfeiture Order, 22 FCC Rcd at 2284 - 2285.
Id. at 2286.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc.,15 FCC Rcd 18257, P: 2
(Enf. Bur. 2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub.
nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert.
denied, 383 U.S. 967 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257, P: 2.
Petition for Reconsideration at 4.
Forfeiture Order, 22 FCC Rcd at 2285 - 2286. See Radio X Broadcasting
Corporation, 21 FCC Rcd 12209 (2006); AT&T Wireless Services, Inc., 17 FCC
Rcd 21866 (2002).
The Forfeiture Order stated that Entravision was apparently not even aware
of the RFR issues on the penthouse rooftop until it was contacted by a
Tampa agent to arrange the July 1, 2004, inspection. However, the
background sections of the Forfeiture Order and the NAL state that on July
1, 2004, before conducting any testing, the station engineer stated he
knew that areas near his antenna exceeded the occupational limits and that
the area should have been posted with warning signs to alert those
accessing the roof of the hazard.
Entravision asserts it contacted the Park Tower landlord and the
building's Chief Engineer prior to the July inspections. The building's
Chief Engineer claims he had no knowledge of the areas on the penthouse
rooftop exceeding the general and occupational MPE limits prior to May 25.
Petition for Reconsideration at 8-9; Proposed Changes in the Commission's
Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields,
Notice of Proposed Rulemaking, 18 FCC Rcd 13187, 13201 (2003).
See 47 C.F.R. S:S: 1.1307, 1.1310; 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); OET Bulletin 65. 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 (2000); Public Notice, Reminder of September 1, 2000, Deadline
for Compliance with Regulations for Human Exposure to Radiofrequency
Emissions, 15 FCC Rcd 18900 (2000); A-O Broadcasting, Inc., 17 FCC Rcd
24184 (2002) (subsequent history omitted); Americom Las Vegas Limited
Partnership, 17 FCC Rcd 23689 (EB 2002) (subsequent history omitted); AMFM
Radio Licenses, LLC, 18 FCC Rcd 22769 (2003) (subsequent history omitted).
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). 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 and the general population RFR maximum permissible
exposure limit for a station operating in the frequency range of 300 MHz
to 1500 MHz is f/1500 mW/cm2 which for station KWHY-TV operating on 512 -
518 MHz is 0.345 mW/cm2.
47 C.F.R. S: 1.1310, Note 1 to Table 1.
47 C.F.R. S: 1.1310, Note 2 to Table 1.
OET Bulletin 65 at 53 (footnotes omitted).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13522 (1997); Radio
One Licenses, LLC, 21 FCC Rcd 14271, 14277 (2006).
Petition for Reconsideration at 9.
937 F.2d 649 (D.C. Cir. 1991).
528 F.2d 645 (5th Cir. 1976).
937 F.2d at 654.
528 F.2d at 649.
See Infinity Broadcasting Corporation of Florida, 22 FCC Rcd 2288 (EB
2007).
Forfeiture Order, 22 FCC Rcd at 2286.
Radio One Licenses, LLC, 21 FCC Rcd 14271, 14278 (2006).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-5051
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Federal Communications Commission DA 07-5051