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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Infinity Broadcasting Corporation of )
Florida File No. EB-04-TP-478
)
Licensee of Station WQYK-FM NAL/Acct. No. 200532700005
)
Tampa, Florida FRN: 0004036711
)
Facility ID # 28619
)
)
ORDER ON REVIEW
Adopted: April 7, 2009 Released: April 7, 2009
By the Commission:
I. INTRODUCTION
1. In this Order on Review ("Order"), we deny the application for review
filed by CBS Radio Inc. of Tampa, formerly Infinity Broadcasting
Corporation of Florida ("Infinity"), licensee of station WQYK-FM, 99.5
MHz, serving St. Petersburg, Florida, pursuant to Section 1.115 of the
Commission's Rules ("Rules"). Infinity seeks review of the Forfeiture
Order issued February 6, 2007, by the Enforcement Bureau South Central
Region ("Region") imposing a monetary forfeiture in the amount of
$10,000 on Infinity for the willful and repeated violation of Section
1.1310 of the Rules. The noted violation involved Infinity's failure
to comply with radio frequency radiation ("RFR") maximum permissible
exposure ("MPE") limits applicable to facilities, operations, or
transmitters. In this Order, we consider the various arguments raised
by Infinity and for the reasons set forth below, we deny the
application for review and affirm the Region's finding of liability
and the forfeiture amount assessed in the Forfeiture Order.
II. BACKGROUND
2. The RFR Rules. In 1996, the Commission amended its rules to adopt new
guidelines and procedures for evaluating the environmental effects of
RFR from FCC regulated transmitters. The Commission adopted maximum
permissible exposure ("MPE") limits for electric and magnetic field
strength and power density for transmitters operating at frequencies
from 300 kHz to 100 GHz. These 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 exposed as a consequence of their employment may
not be fully aware of the potential for exposure or cannot exercise
control over their exposure. Licensees can demonstrate compliance by
restricting public access to areas where RFR exceeds the public MPE
limits.
3. The MPE limits specified in Table 1 of Section 1.1310 are used to
evaluate the environmental impact of human exposure to RFR and apply
to "...all facilities, operations and transmitters regulated by the
Commission." Further, the FCC's rules require that if the MPE limits
are exceeded in an accessible area due to the emissions of multiple
transmitters, actions necessary to bring the area into compliance "are
the shared responsibility of all licensees whose transmitters produce,
at the area in question, power density levels that exceed 5% of the
power density exposure limit applicable to their particular
transmitter." The 5% threshold applies to the power density limit or
to the square of the electric or magnetic field strength limit. If the
MPE limits are exceeded at an accessible area, all stations that
produce a power density level exceeding 5% of the power density
exposure limit applicable to its particular transmitter at that
accessible area share responsibility to correct the problem. While we
have urged owners of transmitter sites to allow applicants and
licensees to take reasonable steps to comply with the Commission's RF
Rules, the Commission has determined that responsibilities pertaining
to RF electromagnetic fields belong with licensees and applicants,
rather than with site owners.
4. Broadcast stations that filed applications after October 15, 1997, for
an initial construction permit, license, renewal or modification of an
existing license were required to demonstrate compliance with the new
RFR MPE limits, or to file an Environmental Assessment and undergo
environmental review by Commission staff. In addition, all existing
licensees, including all licensees at multiple transmitter sites, were
required to come into compliance with the new RFR MPE limits by
September 1, 2000, or to file an Environmental Assessment.
5. The Park Tower rooftop inspection. On May 25, 2004, Tampa Office
agents, 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 which
also greatly exceeded the general population/uncontrolled RFR MPE
limit. The agent determined that there was a second UHF-TV and two FM
radio stations, one of which belonged to station WQYK-FM, all on
separate towers located on the penthouse rooftop at the time of
inspection. 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.
6. 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.
7. On July 1, 2004, agents again took measurements on the penthouse
rooftop of Park Tower. When all four stations were on the air, the RFR
fields at 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.
8. On July 15, 2004, an agent spoke with the engineer for station WQYK-FM
to set up a meeting to conduct an RFR inspection at the transmitter
site. The station engineer stated he knew of areas on the penthouse
rooftop that exceeded the occupational limits and that station WQYK-FM
was contributing more than 5% to those fields.
9. On July 16, 2004, Tampa agents conducted another inspection of the
penthouse rooftop. Entravision Holdings, LLC ("Entravision"), licensee
of WVEA-LP, had placed a small, framed caution sign in the stairwell
to the penthouse roof hatch that listed contact information for the
WVEA-LP station engineer. Entravision had also marked with yellow
paint the penthouse rooftop area exceeding the occupational/controlled
RFR MPE limit, but had not placed warning signs on the penthouse
rooftop itself. The Tampa 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 contribution of both the
general public/uncontrolled RFR MPE limit and the
occupational/controlled RFR MPE limit. When WQYK-FM was taken off the
air and measurements were made, it was determined that WQYK was
responsible for more than 5% of the both occupational/controlled RFR
MPE limit and the general population/uncontrolled RFR MPE limit.
Before leaving, the agents told the station WQYK-FM engineer of his
station's contribution. Although station WVEA-LP had marked the areas
on the penthouse rooftop that exceeded the occupational limit with
yellow paint and placed a framed warning signed in the stairwell, the
engineers were warned that the area was still not properly marked. The
agents also suggested that the station WQYK-FM engineer speak with the
building's chief engineer to discuss other steps to give the workers
knowledge and control over their exposure. The agents again explained
to the station WQYK-FM engineer the RFR requirements.
10. On July 20, 2004, an agent contacted the station WQYK-FM engineer to
discuss the July 16th inspection. The station engineer had not posted
any warning signs on the penthouse rooftop and had not contacted the
building's engineer. The agent reminded the station engineer of
station WQYK's responsibility, as a contributor of more than 5% of the
RFR in excess of the allowable limit, to comply with the Commission's
RFR requirements. 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 16 and 20.
11. 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. Station WVEA-LP had placed a sign on its tower that
cautioned workers that the yellow striped area exceeds 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.
12. 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 limit. 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 limit.
13. On January 5, 2005, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Infinity in the amount of twenty thousand
dollars ($20,000) for the apparent willful and repeated violation of
Section 1.1310 of the Rules by failing to comply with RFR MPE limits
on the penthouse rooftop of Park Tower. Infinity filed a response to
the NAL on March 16, 2005, requesting that the forfeiture be
rescinded. While not disputing the RFR measurements, Infinity argued
that the occupational/controlled RFR MPE limit should have been
applied to the penthouse roof rather than the public/uncontrolled RFR
MPE limits; that the alleged violation was not willful, as Infinity
had no prior knowledge of the RFR violations at the Park Tower site;
and that the Tampa Office incorrectly assessed an upward adjustment of
the forfeiture amount against Infinity.
14. On February 6, 2007, the Region released a Forfeiture Order assessing
a monetary forfeiture of $10,000 against Infinity 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 public MPE
limits applied because workers and employees accessing the penthouse
rooftop were wholly unaware of the potential for high RFR on the
penthouse rooftop because there were no RFR warning signs on the
penthouse rooftop and no markings or delineations of the area of high
RFR, and the one and only RFR sign leading to the penthouse rooftop
was routinely hidden from view of those accessing the penthouse roof
Accordingly, with no knowledge of the existence of RFR on the
penthouse rooftop and the potential for exposure and no means of
controlling exposure to the RFR on the rooftop that exceeded the MPE
limits, the public MPE limits apply to workers and employees accessing
the rooftop and exposed to the RFR as a consequence of their
employment. The Region also determined that Infinity, as a licensee
contributing more than 5% of its transmitter's RFR MPE limit, was
obligated under the Commission's Rules to ensure RFR awareness and
control for the affected workers and employees, not the Park Tower
building management. The Region also rejected Infinity's argument that
the violation was not willful, finding that in its most recent
application for renewal of the WQYK-FM broadcast license, Infinity
certified that WQYK-FM "complies with the maximum permitted
radiofrequency electromagnetic exposure limits for controlled and
uncontrolled environments." Consequently, the Region found that
Infinity was aware of its responsibilities pursuant to the
Commission's RFR Rules, and failed to comply with them. The Region
did, however, eliminate the upward adjustment of the proposed
forfeiture and assessed the base forfeiture amount of $10,000.
III. DISCUSSION
15. In this Order we deny Infinity's Application for Review, and affirm
the Region's finding of liability and the forfeiture amount assessed
in the Forfeiture Order. We find that through the RFR rules, the
various orders on reconsideration of the rules, OET Bulletin 65 and
the subsequent enforcement orders that the Commission has issued and
published since 1996, a regulated party acting in good faith would be
able to identify, with ascertainable certainty, the standards with
which the Commission expects parties to conform in order to comply
with the RFR rules. We further find that licensees and applicants must
comply with the MPE limits for RFR found in Section 1.1310 of the
rules; and that Section 1.1307(b)(3) of the rules places an
affirmative duty on all licensees whose transmitters produce, at the
area in question, power density levels that exceed 5% of the power
density exposure limit applicable to their particular transmitter, to
ensure compliance with the Section 1.1310 limits at the relevant
sites.
16. Infinity raises three primary arguments in its Application for Review.
First, Infinity argues that it and other similarly situated licensees
lacked notice of the RFR standards applicable to rooftop antenna sites
and that the Commission's RFR compliance standards to ensure workers
are fully aware of their potential for RFR exposure fails the
requirement that licensees should be able to identify, with
ascertainable certainty, the standards for complying with the rules.
In support, Infinity cites to a pending rulemaking aimed at clarifying
the definitions of the terms "fully aware" and "exercise control"
contained in Section 1.1310 of the rules. Second, Infinity argues that
Section 1.1310 contains no substantive prohibitions and imposes
requirements on the Commission, not on licensees. Third, Infinity
asserts that strict liability for licensees contributing 5% to an RFR
field in excess of the MPE is unreasonable when a licensee is unaware
a violation exists. Infinity also disputes some of the facts detailed
above.
17. Infinity first argues that it cannot be held liable for a forfeiture
for violating the RFR MPE limits because it was unable to identify
with ascertainable certainty the standards to which the Commission,
through its field agents, expected it to comply on a restricted access
rooftop antenna farm. We disagree. The ascertainable certainty
standard that Infinity cites to stands for the proposition that an
agency must provide fair notice of the obligation being imposed on a
regulatee, i.e., that "by reviewing the regulations and other public
statements issued by the agency a regulated party acting in good faith
would be able to identify, with ascertainable certainty, the standards
with which the agency expects parties to conform before imposing civil
liability."
18. Infinity was found by the Region to have violated Section 1.1310 of
the Commission's rules. Note 2 to Table 1 of Section 1.1310 states
that the "general population/uncontrolled exposures 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." Infinity bases its argument of lack of ascertainable
certainty of the RFR requirements on the existence of an open
rulemaking commenced by the Commission in 2003 that proposed, among
other things, to clarify the terms "fully aware" and "exercise
control" from Note 2 to Table 1 of Section 1.1310, and on the alleged
lack of a standard for compliance with these requirements. We first
disagree that the existence of the open rulemaking cited by Infinity
casts doubt on the basic and clearly articulated requirements of FCC
licensees to comply with the important public safety RFR MPE limits
applicable to facilities, operations and transmitters. As noted,
agency regulations, orders, rulemakings, and guidance documents have
provided notice of the Commission's expectations related to
compliance with the RFR rules, and in particular to restricting access
to, marking and signing areas with high RFR exposure. In the 1996
Report and Order adopting the RFR rules, the Commission stated that
"warning signs and labels can also be used to establish such awareness
as long as they provide information, in a prominent manner, on risk of
potential exposure and instructions on methods to minimize such
exposure risk." In OET Bulletin 65, the Commission provided explicit
guidance on compliance expectations, stating:
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.
. . . .
Exposure to RF fields in the workplace or in other controlled environments
usually presents different problems than does exposure of the general
public. For example, with respect to a given RF transmitting facility, a
worker at that facility would be more likely to be close to the radiating
source than would a person who happens to live nearby. Although
restricting access to high RF field areas is also a way to control
exposures in such situations, this may not always be possible. . . .
In general, a locked rooftop or other appropriately restricted area that
is only accessible to workers who are "aware of" and "exercise control
over" their exposure would meet the criteria for occupational/controlled
exposure, and protection would be required at the applicable
occupational/controlled MPE limits for those individuals who have access
to the rooftop. Persons who are only "transit" visitors to the rooftop,
such as air conditioning technicians, etc., could also be considered to
fall within the occupational/controlled criteria as long as they also are
"made aware" of their exposure and exercise control over their exposure.
19. The Region found, in the Forfeiture Order, that the public MPE limits
applied because Park Tower workers and employees accessing the
penthouse rooftop were unaware of the potential for high RFR on the
penthouse rooftop because there were no indications on the penthouse
rooftop that the MPE limits exceeded applicable standards such as
through the use of RFR warning signs on the rooftop or markings or
delineations of the area on the rooftop of high RFR. Moreover, the
Region found that, although there was one sign posted on a door
leading to the rooftop that indicated that the MPE limits exceeded
applicable standards, that one and only RFR sign was routinely hidden
from view of those accessing the penthouse roof because the door was
routinely open. Indeed, on each of six occasions that the Tampa agents
inspected the site the door was propped open, and the agents did not
see the sign. Consequently, while access to the area of concern was
restricted, no visible signage or markings existed to make workers and
employees entering the area of concern even aware of their exposure,
let alone enable such workers or employees to exercise control over
their exposure to high RFR fields in the area of concern. Infinity
failed to sign and mark the area of concern on the penthouse rooftop,
a minimal requirement necessary to ensure worker awareness of even the
existence of high RFR fields and a standard articulated by the
Commission when it adopted the RFR rules and in the guidance issued by
the Commission in OET Bulletin 65. Contrary to Infinity's assertion,
the Region did not hold Infinity to a "fully aware" standard that
required training, as proposed by the open rulemaking.
20. We also note that Infinity submitted an RFR exhibit related to the
Park Tower site in the renewal application for Station WQYK in which
Infinity stated that areas on the penthouse rooftop where the station
is located exceed the Commission's MPE limits for controlled
environments and that the areas are clearly identified and marked.
Infinity also stated in the exhibit that a plan is in effect and
understood by all licensees at the antenna site to protect workers
accessing the penthouse roof. Finally, Infinity stated in the exhibit
that access to the transmitting site is restricted and properly marked
with warning signs and thereby classified as a controlled environment.
We find that by Infinity's own submissions, it understood with
ascertainable certainty what was required by the Commission, yet
failed to comply with the standards it certified were in place to
ensure RFR compliance at the Park Tower penthouse rooftop antenna
site.
21. We find that through the RFR rules, the various orders on
reconsideration of the rules, OET Bulletin 65 and the subsequent
enforcement orders that the Commission has issued and published since
1996 and under the facts presented here, WQYK-FM would have been able
to identify, with ascertainable certainty, the standards with which we
expect parties to conform in order to comply with our RFR rules. We
cannot accept Infinity's assertion that the mere existence of the open
pending rulemaking from 2003 hamstrings our ability to enforce these
important public safety rules.
22. Infinity disputes that the Park Tower's chief engineer and his
personnel access the penthouse roof on a regular basis. Infinity
asserts that there is no building-maintained equipment on the
penthouse rooftop and suggests the building engineer was confusing the
main rooftop, which does contained building-maintained equipment, with
the penthouse rooftop which contains only television, radio and
microwave equipment. We have reviewed the record of the statement made
by the Park Tower chief engineer and we conclude that the engineer
indicated to the Tampa agent that he and his personnel routinely
access both the roof and the penthouse roof. While there may not be
any building-maintained equipment on the penthouse roof, as Infinity
asserts, it is indisputable that the engineer and his personnel are
responsible for the maintenance of the penthouse roof itself.
Therefore, we find no merit to Infinity's argument that the Park Tower
Chief engineer and his personnel do not access the penthouse roof.
23. Infinity also disputes that on July 15, 2004, when a Tampa agent spoke
with the engineer for station WQYK-FM to set up a meeting to conduct
an RFR inspection at the transmitter site, the station engineer stated
he knew of areas on the penthouse rooftop that exceeded the
occupational limits and that station WQYK-FM was contributing more
than 5% to those fields. Infinity argues that the engineer had no
knowledge of "the overage" until July 20, 2004, at the earliest. The
Tampa agent's notes indicate otherwise. However, if we accept
Infinity's assertion from its response to the NAL, that the WQYK-FM
engineer was actually talking about an RFR issue that occurred on the
roof in 2003, we find that it further supports the Region's
determination that Infinity was aware of the requirements concerning
compliance with the RFR rules. Consequently, we find no merit in this
argument.
24. Infinity also argues that Section 1.1310 of the rules contains "no
substantive prohibitions at all" and simply identifies criteria which
"applicants and the Commission are required to take into consideration
in evaluating whether Commission actions are deemed to have a
significant effect on the quality the environment [sic] for purposes
of the National Environmental Policy Act of 1969." While Infinity is
correct that Section 1.1310 delineates the appropriate standard for
that evaluation, Infinity ignores numerous Commission documents and
decisions that clearly require licensees and applicants to comply with
the MPE limits for RFR set forth in Section 1.1310 of the Rules.
Specifically, the instructions for FCC Form 303-S, the renewal
application form signed and submitted by Infinity in its 2004 WQYK-FM
Renewal Application, remind applicants that "[i]n 1996, the Commission
adopted guidelines and procedures for evaluating environmental effects
of RF emissions. All applications subject to environmental processing
. . . must demonstrate compliance with these requirements." Those
instructions detail the two tiers of exposure limits (general
population/uncontrolled and occupational/controlled) contained in
Section 1.1310 and repeatedly direct applicants to OET Bulletin 65,
which repeatedly cites to Section 1.1310 and gives guidance to
licensees and applicants on compliance with the guidelines contained
in Section 1.1310. In addition, as reiterated by the Region in both
the NAL and Forfeiture Order, the Commission has held repeatedly that
Section 1.1310 of the Rules requires licensees to comply with RFR
exposure limits. Consequently, we find that the Commission gave
Infinity, and all similarly situated licensees, fair notice of the
requirements and its interpretation of Section 1.1310 of the rules.
25. Infinity also asserts that the Commission may not hold Infinity liable
for another licensee's violation, where Infinity had no knowledge of
the violation. Specifically, Infinity argues that the Region is
holding it liable for a violation actually committed by Entravision,
and that Infinity did not willfully violate that RFR rules. We
disagree. Contrary to Infinity's assertion that the Region's
interpretation of Section 1.1307(b)(3) imposed a strict liability
standard on Infinity, we find that Section 1.1307(b)(3), which clearly
states that compliance with the RFR MPE requirements found in Section
1.1310 "are the shared responsibility of all licensees whose
transmitters produce, at the area in question, power density levels
that exceed 5% of the power density exposure limit applicable to their
particular transmitter," places an affirmative duty on these
particular licensees to actively ensure compliance with the Section
1.1310 limits at the relevant sites. There is no dispute that
Infinity's transmitter produces levels in excess of the 5% power
density limit applicable to the transmitter at the rooftop site.
Consequently, it follows that Infinity was obligated, under our Rules,
to ensure compliance with the RFR rules at the multi-transmitter site
in question here. Although Infinity argues that it reasonably relied
upon the grant of an Entravision application in January 2004, in
assuming that the area was in compliance with the RFR rules, we agree
with the Region that Infinity's reliance on the Entravision
application in perpetuity was misplaced. Tampa agents informed
Infinity through its station engineer in mid-July 2004 that it was a
5% contributor and that the area was not in compliance with the RFR
rules. As explained above, non-compliance continued well into
September 2004, when agents found that Entravision, but not Infinity,
placed additional signage on its antenna concerning occupational
limits, but continued to fail to place signage concerning public
limits. Thus, Infinity willfully failed to act to ensure compliance
as a 5% contributor at the rooftop site with the Section 1.1310 RFR
MPE requirements. Furthermore, we note that the Region not only
determined that Infinity willfully violated Section 1.1310, it found
that Infinity also repeatedly violated Section 1.1310, a finding
Infinity does not dispute. Therefore, a finding of willfulness was not
essential to imposition of the forfeiture.
26. Upon review of the Application for Review and the entire record
herein, we conclude that Infinity has failed to demonstrate that the
Region erred and we affirm the Forfeiture Order.
IV. ORDERING CLAUSES
27. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Commission's Rules, the Application for Review filed by CBS Radio Inc.
of Tampa, formerly Infinity Broadcasting Corporation of Florida, IS
hereby DENIED.
28. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Section 1.80(f)(4) of the Rules, CBS Radio Inc. of Tampa, formerly
Infinity Broadcasting Corporation of Florida, 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.
29. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
30. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to CBS Radio Inc. of
Tampa, formerly Infinity Broadcasting Corporation of Florida, at its
address of record and its counsel, Steven Lerman, Esquire, Leventhal,
Senter & Lerman PLLC, 2000 K Street NW, Suite 600, Washington, DC
20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 C.F.R. S: 1.115.
Infinity Broadcasting Corporation of Florida, 22 FCC Rcd 2288 (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) ("Second
Guidelines").
The description of the history of the RFR rules here was originally set
forth in Radio One Licenses, LLC, 21 FCC Rcd 14271 (2006).
Guidelines for Evaluating the Environmental Effects of Radiofrequency
Radiation, Report and Order, ET Docket No. 93-62, 11 FCC Rcd 15123 (1996)
("RF First 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) ("RF Second Memorandum Opinion and Order").
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/cm.2
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., OET Bulletin 65: "Evaluating Compliance with FCC Guidelines for
Human Exposure to Radiofrequency Electromagnetic Fields" (August 1997)
("OET Bulletin 65").
See 47 C.F.R. S:S: 1.1307(b), 1.1307(b)(1), 1.1310.
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13520-21; 47 C.F.R.
S: 1.1307(b)(3).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13524; 47 C.F.R. S:
1.1307(b)(3).
Id. at 13520-21; 47 C.F.R. S: 1.1307(b)(3).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13522 - 13523; 47
C.F.R. S: 1.1307(b)(3).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13538; 47 C.F.R. S:
1.1307(b).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13540; 47 C.F.R. S:
1.1307(b)(5). See also, Public Notice, Year 2000 Deadline for Compliance
with Commission's Regulations Regarding Human Exposure to Radiofrequency
Emissions (released Feb. 25, 2000); Public Notice, Erratum to February 25,
2000 Public Notice, 15 FCC Rcd 13600 (2000); Public Notice, Reminder of
September 1, 2000, Deadline for Compliance with Regulations for Human
Exposure to Radiofrequency Emissions, 15 FCC Rcd 18900 (2000).
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 pp. 55 - 59.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532700005
(Enf. Bur., Tampa Office, January 5, 2005) ("NAL").
See Letter from Meredith S. Senter, Jr., counsel for Infinity, to Federal
Communications Commission (dated March 16, 2005). Infinity requested an
extension to submit its response to the NAL, which was granted by the
Bureau.
WQYK-FM 2003 Renewal Application, Section III, Question 6. Infinity also
stated that "a plan is in effect and understood by all of the licensees at
the antenna site to protect workers on the penthouse roof." We note that
no copy of that plan has been produced in this proceeding.
The Bureau received Infinity's Application for Review on March 8, 2006.
Pursuant to Section 1.115 of the Commission's Rules, parties may file an
application for review of an order issued under delegated authority
directly with the Commission without first seeking reconsideration at the
Bureau level.
Trinity Broadcasting of Florida, Inc., v. FCC, 211 F 3rd 618, 628 (D.C.
Cir. 2000).
Proposed Changes in the Commission's Rules Regarding Human Exposure to
Radiofrequency Electromagnetic Fields, 18 FCC Rcd 13187 (2003).
Trinity Broadcasting of Florida, Inc. v. FCC, 211 F 3rd at 628.
47 C.F.R. S: 1.1310, Note 2 to Table 1.
As the Bureau recently noted, "[th]e 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." Entravision Holdings, LLC,
Memorandum Opinion and Order, DA 07-5051, (Enf. Bur. December 21, 2007)
at P: 17 n. 22. See also, 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; 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).
Guidelines Report and Order, 11 RCC Rcd at 15140 (1996).
OET Bulletin 65 at 53 (footnotes omitted).
OET Bulletin 65 at 55 (footnotes omitted).
Forfeiture Order, 22 FCC Rcd at 2292-2293, para. 18.
The Region also determined that Infinity inappropriately attempted to
delegate responsibility for RFR compliance to the Park Tower building
management. We concur. The Commission has clearly articulated that
responsibility for RFR compliance lies with licensees and applicants, not
landlords or site owners. RF Second Memorandum Opinion and Order, 12 FCC
Rcd at 13522 (1997).
In the rulemaking, the Commission proposes, among other things, 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." Proposed Changes in the Commission's Rules Regarding Human
Exposure to Radiofrequency Electromagnetic Fields, 18 FCC Rcd at 13201.
File No. BRH-20031001AGG ("WQYK-FM 2004 Renewal Application"), Exhibit 13.
We note that this application was granted January 29, 2004.
Application for Review at 5.
FCC Form 303-S Instructions at p. 10.
FCC Form 303-S Instructions at pp. 10, 12, 13, 14, 15, 20 and 21.
See e.g., supra P: 18.
NAL at P: 12; Forfeiture Order, 22 FCC Rcd at 2291.
See e.g., A-O Broadcasting, Inc., 17 FCC Rcd 24184 (2002) (subsequent
history omitted); AMFM Radio Licenses, LLC, 18 FCC Rcd 22769 (2003)
(subsequent history omitted); Americom Las Vegas Limited Partnership, 17
FCC Rcd 23689 (EB 2002), forfeiture assessed, 19 FCC Rcd 9643 (EB 2004),
application for review denied, 21 FCC Rcd 14286 (2006).
47 C.F.R. S: 1.1307(b)(3).
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.80(f)(4).
47 U.S.C. S: 504(a).
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