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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Visionary Related Entertainment,
L.L.C. ) File No.: EB-04-HL-049
Licensee of FM Station KAOI-FM ) NAL/Acct. No.: 200532860001
Wailuku, Hawaii ) FRN: 0005410295
Facility ID #70375 )
Adopted: February 2, 2007 Released: February 6, 2007
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Visionary Related
Entertainment, L.L.C. ("Visionary"), licensee of FM station KAOI-FM,
in Wailuku, Hawaii, for willful and repeated violation of Section
1.1310 of the Commission's Rules ("Rules"). On February 4, 2005, the
Enforcement Bureau's Honolulu Resident Agent Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Visionary after determining that Visionary had failed to comply with
the Commission's radio frequency radiation ("RFR") maximum permissible
exposure ("MPE") limits applicable to facilities, operations, or
transmitters. In this Order, we consider Visionary's arguments that
it did not willfully violate the Commission's RFR rules, and that the
area that exceeded the RFR MPE limits was not accessible to the
2. On July 19, 2004, Visionary filed an application to modify KAOI-FM's
antenna height from the licensed height of 25 meters AGL to 14 meters
AGL. Visionary also proposed modifying KAOI-FM's licensed effective
radiated power from 100 kW to 55 kW. As part of the application,
Visionary indicated that it was unable to certify that "the facility
will not have a significant environmental impact and complies with the
maximum permissible radiofrequency electromagnetic exposure limits for
controlled and uncontrolled environments." Visionary attached a
"detailed explanation of the RFR situation at the KAOI-FM site" as
part of the application. In the explanation, Visionary stated that the
current antenna system, operating at 100 kW, at a height of 14 meters
above ground, "produces a maximum field intensity of 4614.37
microwatts per squared [sic] centimeter at a distance of 2.8 meters
from the base of the tower."
3. On September 7, 2004, a Honolulu agent spoke to the President of
Visionary, and requested that KAOI-FM be made available for inspection
on September 8, 2004. The Honolulu agent was later informed by the
station engineer that KAOI-FM was running at reduced power due to
transmitter technical problems. On October 14, 2004, the Honolulu
Office issued a Letter of Inquiry ("LOI") to Visionary regarding
reduced power operations throughout calendar year 2004. Visionary's
October 26, 2004 response delineated a series of eight separate
instances between January and October of 2004 when equipment issues
resulted in reduced power operations. In a supplemental November 2,
2004 response to the LOI, Visionary stated that the station had been
operating at full licensed power levels since October 29, 2004, and
pledged to notify the Honolulu Office of any further problems.
4. On October 20, 2004, Martha Vockrodt-Moran, along with the D.T.
Fleming Arboretum, filed a complaint with the Commission's Enforcement
Bureau requesting that the Bureau "order KAOI-FM to cease transmitting
because it operations pose a significant threat to health and safety."
Specifically, the complaint alleged that "for the past fourteen years,
[Visionary] has operated KAOI in violation of the RF exposure rules"
and that the property adjacent to the KAOI transmitter site "is
regularly used by Arboretum workers, residents, children, campers and
hikers." Visionary filed a Motion to Dismiss the Complaint on December
14, 2004. Vockrodt-Moran and the Arboretum filed a response to the
Motion to Dismiss on December 23, 2004.
5. Honolulu agents inspected the KAOI-FM facility on November 17, 2004,
accompanied by KAOI-FM station engineers, as well as a broadcast
consultant. At the time of the inspection, KAOI-FM was authorized to
operate with 100 kW ERP. The KAOI-FM antenna system is a Jampro
JHPC-8, eight bay circular "Double V" antenna, mounted with the
radiation center 14 meters above ground level on a 25 meter wooden
pole at the edge of a cinder cone overlooking a steep hilltop. A
roadway passes within 30 feet of the KAOI-FM antenna. The roadway is
gated on both entrances to the antenna. There is a locked gate on the
access road north of the transmitter site that bars routine public
vehicular access to the entire area. A portion of the D.T. Fleming
Arboretum property, Ulupalakua, Maui, is adjacent to the site. A
second gate, bordering on Arboretum property and limiting access
between the transmitter site area and the Arboretum property, is
approximately 35 to 42 feet south of the antenna. A cell tower with
multiple antennas is located approximately 100 feet east of the
KAOI-FM antenna site. Although vehicular access to the antenna site is
restricted by means of a locked gate, pedestrian access is not
restricted, and there is a private residence past the locked gate.
6. The agents observed no physical barrier restricting public access to
the antenna support pole, and no RFR warning signs posted. The KAOI-FM
transmitter was running at a power output of 96,732 watts, a
representative level in view of the mountaintop commercial power
fluctuations. The agents employed a personal RF monitor to initially
identify a seventy foot long, twenty foot wide area in front of the
transmitter building with potential high RFR levels. Measurements were
conducted at four locations using a calibrated meter. The measurements
employed a spatial averaging measurement technique, where measurements
in four quadrants are averaged to give a representative reading for
each location. The Commission's RFR public MPE limit for a transmitter
operating in the 30 MHz to 300 MHz range, such as the KAOI-FM
transmitter, is 0.2 mW/cm^2. The agents found that the public RFR MPE
limits were significantly exceeded within 3 feet of the pole, and that
the public RFR MPE limits continued to be exceeded in a twenty foot by
ten foot rectangular area in front of the antenna support pole. The
agents' actual measurements corroborated Visionary's calculated
assessment that RFR at the site exceeded the public MPE. The agents
repeated the measurements at the same four designated locations with
the transmitter running at a reduced output power of 56,350 watts. The
agents' measurements indicated RFR levels still exceeded the public
RFR MPE limits in the area of the immediate vicinity of the support
pole. Again, these measurements corroborated Visionary's calculated
assessment of RFR above the public MPE limit with KAOI-FM's power
reduced to 55 kW. At the conclusion of the inspection, the station
engineers reduced the transmitter power and stated that the station
would operate at a reduced power level until the RFR issue was
resolved. The station engineers informed the agents that the station
intended to install fencing to restrict public access, and also
intended to submit a request for special temporary authority ("STA")
to operate at reduced power levels.
7. On February 4, 2005, the Honolulu Office issued the NAL in the amount
of $10,000 to Visionary, finding that Visionary had apparently
willfully and repeatedly failed to comply with the Commission's RFR
MPE limits applicable to the KAOI-FM transmitters. The Honolulu Office
also directed Visionary to file a sworn statement describing: 1) what,
if any, steps it took between July, 2004, and November, 2004, to
ensure compliance with the Commission's RFR Rules at the KAOI-FM
transmitter site; 2) what, if any, steps it has taken since the
Honolulu agents' inspection in November, 2004, to ensure compliance
with the Commission's RFR Rules at the site; and 3) its current plan
to ensure compliance with the Commission's RFR Rules at the site. In
the NAL, the Honolulu Office also dismissed the Complaints files by
Martha Vockrodt-Moran and the Arboretum. Visionary filed a response
to the NAL ("Response") on March 1, 2005, along with the required
sworn statement. In its Response, Visionary does not dispute the
measurements made by the Honolulu agents. Instead, Visionary argues
that it did not willfully violate the Commission's RFR rules, and that
it believed, in good faith, its site was in a remote non-accessible
area with adequate warning signs.
8. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
Visionary's response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require.
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. 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/uncontrolled ("public") RFR maximum permissible exposure
limit for a station operating in the frequency range of 30 MHz to 300
MHz is 0.2 mW/cm^2 and the occupational/controlled RFR maximum
permissible exposure limit in this frequency range is 1 mW/cm^2.
10. Visionary's opposition to the NAL is based on two assertions. First,
Visionary argues that the area where the agents measured RFR in excess
of the Commission's MPE limits for public exposure was not in fact an
area accessible to the public, but accessible only to trespassers, and
had adequate warning signs. Second, Visionary argues that having
determined that the area was not publicly accessible, Visionary
proceeded in good faith and did not willfully violate the Commission's
RFR rules. We will discuss these assertions in turn.
11. The Honolulu agents determined that the public RFR limits applied to
the KAOI-FM transmitter site. Visionary asserts in its Response that
the area where the KAOI-FM site is located is remote and inaccessible
and that it always treated the site as remote. Visionary does not
explicitly assert that the occupational RFR limits apply, but that is
the implication drawn from the arguments in its Response.
Specifically, Visionary states that the KAOI-FM transmitter has
operated from the same site and antenna height since the 1970s, that
the antenna is predicted to create RFR fields at ground level at the
base of the antenna of 4.614 mW/cm^2, that in the past engineers and
workers on the site have reduced the operating power to a safe level
to allow maintenance to be performed, that the transmitter site is on
a private cattle ranch, and that the public is banned from the ranch.
Visionary also states in its Response that the work area within the
adjoining building to the tower contains the requisite sign for
station workers that the RF level be lowered when performing any work
in the area, and that a sign outside the transmitter building
indicates the danger of RF radiation. Visionary also states that to
reach the transmitter site, a person would have to trespass and climb
12. 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 Commission's RFR
rules require licensees and permittees to abide by the more stringent
"general population/uncontrolled" MPE limits, in situations in which
the general public may be exposed or where persons who 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.
When the Commission first promulgated these rules in 1996, it noted
that "members of the general public always fall under this [general
population/uncontrolled] category when exposure is not employment
related, as is the case of residents in an area near a broadcast
tower." The Commission's Office of Engineering and Technology ("OET")
recommends that applicants for broadcast stations take into account,
when determining their compliance with the Commission's RF rules,
whether "[h]igh RF levels are produced at ground level in an area
which could reasonably be expected to be used by the public (including
13. As described above, although the land where the KAOI-FM antenna
structure was located was private, the Honolulu agents determined that
trespassers were able to access the site, a fact that Visionary
acknowledges. While Visionary's description, that the site was located
in a remote, rural area, on a private ranch behind a locked gate, may
be accurate, the Honolulu agents investigation of the area showed that
the locked gate impeded vehicular traffic, not pedestrian traffic.
Further, Visionary's own description of the property states that a
fence lies between the ranch property and the Arboretum, and that the
KAOI-FM transmitter was only 30 feet from this fence. We find that
while the site was on private property, it was neither so remote nor
so well controlled as to be inaccessible to the public. Indeed, with
the Arboretum so close, along with roads through the property, and a
cell tower also on the property, we find the antenna site was in an
area accessible to the public, including trespassers. Thus, we
conclude that the Honolulu agents correctly determined that the public
RFR MPE limits apply.
14. Compliance with the public RFR MPE limits can be achieved in different
ways, depending on the particulars of the site. In OET Bulletin 65,
the Commission's OET 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.
15. Visionary states that a work area within the building adjacent to the
tower contained a sign for station workers instructing them to lower
the RF level before performing any work in the area, and that a sign
posted outside the transmitter building specifically indicated the
danger of RFR. The Honolulu agents however found no RFR warning signs
posted near the area of concern which exceeded the public RFR MPE
limits. As the Commission recently determined, in remote areas where
physical barriers do not exist, the burden is on the licensee to
ensure that the area of concern is plainly and clearly marked with RFR
warning signs so that members of the public do not access areas of RFR
in excess of the MPE limits.
16. The Honolulu agents found no RFR warning signs posted that were
visible in the area of concern where RFR significantly exceeded the
public MPE limits. Visionary knew high RFR fields existed at ground
level at the site. By Visionary's own admission, operation of KAOI-FM
with 100 kW of power on an antenna mounted with the radiation center
at only 14 meters above ground, produced levels of RFR exposure at
ground level that greatly exceeded the maximum permissible exposure
limits for members of the public. And, by Visionary's own admission,
it operated KAOI-FM with these facilities for many years. We note that
even if we had accepted Visionary's argument that the occupational
limits applied to this site, appropriate signage is critical to ensure
that persons entering the area of high RFR have knowledge and ability
to control their exposure. Again, no such signage existed in the area
of concern. Based on the totality of the facts, we find that the
Honolulu agents appropriately applied the public RFR MPE limit to the
KAOI-FM site, and that Visionary failed to properly mark the area
where RFR exceeded the public MPE limits with appropriate warning
signs until after the FCC's inspection.
17. We next consider Visionary's contention that it did not willfully
violate the Commission's rules. As defined in the Act, "[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...." The Commission's interpretation of "willful" does not require
licensee intent to engage in a violation. Visionary does not allege
that it did not know that the KAOI-FM transmitter was producing RFR in
excess of 0.2 mW/cm^2. Its own application predicted a maximum field
intensity of 4.6 mW/cm^2, or 2400% of the general public MPE limit.
Visionary also does not dispute the measurements made by the Honolulu
agents during their November 17, 2004 investigation, which showed RFR
levels greatly exceeding the general public limit within the immediate
vicinity of the transmitter. Because Visionary was aware of the RFR
limits, and continued to operate the KAOI-FM transmitter such that the
RFR produced at ground level continued to exceed the Commission's
public RFR MPE limits, yet failed to take appropriate steps to control
exposure to high RF fields in the area around the base of the antenna,
including failure to display any RFR warning signs in the area of
concern, we find that Visionary willfully violated Section 1.1310 of
18. We have examined Visionary's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Visionary
willfully and repeated violated Section 1.1310. Considering the entire
record and the factors listed above, we find that neither reduction or
cancellation of the proposed $10,000 forfeiture is warranted
IV. ORDERING CLAUSES
19. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Visionary Related
Entertainment, L.L.C. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for willfully and repeatedly violating Section
1.1310 of the Rules.
20. 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, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Visionary
Related Entertainment, L.L.C., P.O. Box 1730, Rohnert Park,
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S 1.1310.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 2005329860001
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released
February 4, 2005).
See File No. BPH-20040716ABZ, accepted July 19, 2004; dismissed November
18, 2004, DA 04-3647; reconsideration filed December 15, 2004; amended May
9, 2005; application reinstated February 3, 2006 ("July 2004
Application"). During an inspection on January 26, 2004, Honolulu agents
observed that the KAOI-FM's antenna height of radiation center above
ground level (AGL) was approximately 14 meters, as opposed to the
authorized 25 meters. Consequently, the Honolulu Resident Agent Office
issued a Notice of Violation ("NOV") to Visionary on February 26, 2004,
for modifying the KAOI-FM transmission systems without authorization
pursuant to 47 C.F.R. S 73.1690(c)(1). Visionary responded to the NOV on
April 19, 2004, stating that the authorized center of radiation of 25
meters, as shown on the Commission's data base, was a typo or
transposition and that it would take action to correct the error.
Visionary also states, in the July 2004 Application that a 1995 license
grant to Visionary used parameters underlying an older construction
permit, and that the license issued by the Commission on October 19, 1995,
contained the alleged typographical error. July 2004 Application,
Engineering Statement at p. 1 - 2. Visionary also notes in its March 1,
2005, response to the NAL ("Response") that KAOI has operated from the
same site and at the same antenna height since the early 1970s. Response
at 3. Commission's records reveal, however, that in correspondence dated
October 18, 1995, John Detz, President, KAOI Radio Group, wrote that "item
9 d [radiation center above ground] on Form 302-FM, page 4 as corrected
should read the accurate 25 meters RCAGL." Letter of John Detz to Dan
Fontaine, Federal Communications Commission, October 18, 1995.
July 2004 Application, Section III-B.
July 2004 Application, Item 17.
July 2004 Application, Engineering Statement at p. 3. 4614.37 microwatts
per square centimeter is equivalent to 4.614 mW/cm^2.
Complaint of D.T. Fleming Arboretum and Martha Vockrodt-Moran, filed
October 20, 2004 ("Complaint").
Complaint at 5.
Visionary Related Entertainment LLC Motion to Dismiss Complaint, filed
December 14, 2004 "(Motion to Dismiss").
Response of D.T. Fleming Arboretum and Martha Vockrodt-Moran, filed
December 23, 2004 ("Response").
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.
See, Radio One Licensees, LLC, Memorandum Opinion and Order, FCC 06-173,
2006 WL 3472471 (rel. December 1, 2006) at paras. 21 - 24.
47 C.F.R. S 1.1310.
None of the area identified by the agents as an area with potentially high
RF fields crossed onto the adjacent D.T. Fleming Arboretum property.
July 2004 Application, Engineering Statement at p. 3.
Visionary Related Entertainment LLC Renewal Application, BRH-20051003CFK,
Oct. 3, 2005, Exhibit 13. "At 55 kilowatts effective radiated power, this
antenna will produce a calculated maximum field intensity level of
2537.9.6 microwatts per centimeter at a distance of 2.8 meters distant
from the base of the tower. . . ."
In the Motion to Dismiss, filed December 14, 2004, Visionary notes that
its engineers met with the Honolulu agents on November 17, 2004, to take
RFR measurements and that Visionary is "constructing a four foot fence
extending out from the tower site as an added buffer, which construction
should be completed shortly." Motion to Dismiss at 4. On January 17,
2005, Visionary notified the Commission's Honolulu Office that they had
"constructed a fence at the base of the tower that complies with the full
Class C power level at the currently licensed allocation." Letter of
Visionary Related Entertainment to Federal Communications Commission,
Honolulu Office, January 17, 2005.
Visionary did file an STA application, on February 18, 2005, which was
granted on March 9, 2005. See File No. BSTA-20050218ACN. An extension of
the STA, filed September 9, 2005, was granted November 14, 2006. See File
NAL at P 17.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
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)
See 47 C.F.R. S 1.1310, Table 1.
47 C.F.R. S 1.1310.
Visionary also asserts that the instant investigation was instigated by a
competitor who has "lost every challenge to [Visionary] on the local land
use and permit arena . . . ." Response at 2. We note that that the
Honolulu agents investigated the site based on informal complaints by the
operator of the D.T. Fleming Arboretum, whose stated concern, in various
communications with Commission staff, was the safety of the users of the
NAL at 5-6.
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 also, Guidelines for Evaluating
the Environmental Effects of Radiofrequency Radiation, Report and Order,
ET Docket No. 93-62, 11 FCC Rcd 15123, 15139 (1996).
11 FCC Rcd 15139 - 15140.
OET Bulletin 65: "Evaluating Compliance with FCC Guidelines for Human
Exposure to Radiofrequency Electromagnetic Fields" (1997) ("OET Bulletin
65") at 83.
We note that Visionary states that it completed construction of a fence at
a 20 foot distance from the base of the KAOI-FM tower on or about January
OET Bulletin 65 at 53 (footnotes omitted).
Response at 4. Visionary does not state when the warning sign was posted.
See Response at 4 n. 3.
See Americom Las Vegas Limited Partnership Memorandum Opinion and Order,
FCC 06-174, 2006 WL 3472472 (rel. December 1, 2006) at para. 12.
Radio X Broadcasting Corporation Memorandum Opinion and Order, FCC 06-151,
2006 WL 2986546 (rel. October 17, 2006) (a forfeiture reduction for good
faith efforts is not warranted where the subject does not take concrete
steps to remedy a violation until after a field inspection).
See 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. Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Southern California Broadcasting Co., 6 FCC Rcd 4387 at para. 5 (1991).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 1.1310.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-548
Federal Communications Commission DA 07-548