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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Frandsen Media Company, LLC
) File No: EB-09-DV-0090
Licensee of FM Broadcast Station
KGNT ) NAL/Acct.: No. 201132800002
Smithfield, Utah ) FRN: 0007714009
Facility ID #38274 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 2, 2011 Released: May 4, 2011
By the District Director, Denver District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Frandsen Media Company, LLC ("Frandsen"), licensee of FM
broadcast station KGNT in Smithfield, Utah, apparently willfully and
repeatedly violated section 1.1310 of the Commission's rules ("Rules")
by failing to comply with radio frequency radiation ("RFR") maximum
permissible exposure limits applicable to facilities, operations, or
transmitters, and apparently willfully and repeatedly violated section
73.1560(b) of the Rules by operating its transmitter at a power level
not authorized by its license. We conclude that Frandsen is apparently
liable for a forfeiture in the amount of fourteen thousand dollars
($14,000).
II. BACKGROUND
2. On April 14, 2010, agents from the Enforcement Bureau's Denver Office
conducted an inspection at the Station KGNT transmitter site on Round
Hill, between Hyde Park and Smithfield, Utah. At the time of the
inspection, the agents observed that there was no perimeter fence at
the base of Round Hill. The agents observed a one mile dirt road that
allows unrestricted access up Round Hill to the Station KGNT
transmitter site. The site is also reachable in a few minutes from the
base of the hill by four-wheel drive all-terrain vehicle ("ATV") or by
hiking. However, at the top of Round Hill, the Station KGNT antenna
structure and building is located inside a secure chain link fence,
measuring approximately 22 feet by 12 feet. The antenna structure is
located near the northwest corner inside the fenced area. The
transmitter building is located just south of the antenna structure
inside the enclosed fencing. No RFR caution signs were found posted
anywhere on or near the transmitter site.
3. During the inspection, the agents first employed personal RF monitors
to identify and mark a 500 square foot rectangular area of potentially
high RFR levels outside of the fenced-in transmitter site which was
easily accessible to anyone at the top of Round Hill. RFR warning
signs were not posted to restrict access to this area. The agents
marked four spots within the accessible areas of concern outside the
fence, ranging from 12 feet to 28 feet from the antenna structure
tower and from 6 to 24 feet outside the fence. The agents then
conducted detailed measurements in this accessible area of concern
utilizing a calibrated RFR meter and probe and employing a spatial
averaging measurement technique. Public RFR MPE levels were exceeded
throughout the accessible area of concern, with measurements ranging
from 0.33 mW/cm2 to 0.63 mW/cm2 (165 to 315% of the public MPE
limits). No barriers to the area of concern were observed and no RFR
caution or warning signs were found posted anywhere on or near the
site.
4. On April 15, 2010, the Denver agents conducted a follow-up inspection
at the Station KGNT transmitter site with the station's Director of
Engineering and Information Technology engineer. Measurements were
again conducted at the same four locations within the area of concern,
ranging from 12 feet to 28 feet from the antenna structure tower and
from 6 to 24 feet outside the fence, using the calibrated RFR meter
and probe from the previous day. The agents employed the spatial
averaging measurement technique, repeating measurements at each
location. Again, public RFR MPE levels were exceeded in the same area
of concern, with measurements ranging from 0.26 mW/cm2 to 0.53 mW/cm2
(130 to 265% of the public MPE limits). A frequency selective
radiation meter was used to determine the sources of significant RFR
power density. Station KGNT, operating on the frequency of 103.9 MHz,
was the only signal observed that contributed 5% or more to the total
peak power density. On this day, the Denver agents observed both a
paraglider and riders of ATV vehicles freely accessing and using the
top of Round Hill near the RFR area of concern. Again, no barriers to
the area of concern were observed and no RFR caution or warning signs
were found posted anywhere on or near the site.
5. Also on April 15, 2010, the Denver agents determined that, at the time
of the inspection, the transmitter power output ("TPO") for Station
KGNT was 3.2 kW. Using an antenna power gain of 1.50 as specified in
the Phelps-Dodge Antenna Specification Engineering Data, and a line
loss factor of 1.03, the station's effective radiated power ("ERP")
was determined to be 4.7 kW, which was 156% of Station KGNT's
authorized ERP. Working with Station KGNT's Director of Engineering,
as he gradually lowered the power of Station KGNT transmitter, the
agents conducted RFR measurements at various power levels. It was
determined that operating the Station KGNT transmitter at 73% of the
authorized TPO would not produce RFR in excess of the public MPE
limits in publicly accessible areas. The Director of Engineering set
the Station KGNT TPO at 73% of its authorized value.
III. DISCUSSION
6. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
7. 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 RFR maximum permissible exposure limit for a
station operating in the frequency range of 30 MHz to 300 MHz is 0.200
mW/cm2. The 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.
8. The inspections conducted by the Denver agents on April 14 and 15,
2010, revealed a publicly accessible area of approximately 550 square
feet that exceeded the public RFR MPE limits; that Station KGNT was
the sole contributor of more than 5% of the RFR exceeding the public
MPE limits; and that Frandsen did not restrict access to the areas of
concern where RFR levels exceeded the public RFR MPE limits. Neither
vehicular nor pedestrian access to the KGNT transmitter site was
restricted, as the site can be accessed by four-wheel drive and ATV
vehicles and by hikers. Frandsen bears the responsibility to restrict
access to the noncompliant area that exceeds the RFR limits or to
modify the facility and operation so as to bring the station's
operation within the RFR exposure limits prior to public or worker
access to the impacted area. The Denver agents observed no RFR
caution or warning signs at or near the Station KGNT site,
particularly in the easily accessible area of concern, in which RFR
levels ranged between 130% and 350% of the public MPE limits. We
therefore find that Frandsen's operation of Station KGNT exceeded the
public RFR MPE limits in a large, publicly accessible area and
violated section 1.1310 of the Rules.
9. In the 2005 renewal application for KGNT, Frandsen certified that the
Station KGNT facility complied with the maximum permissible radio
frequency electromagnetic exposure limits for controlled and
uncontrolled environments. In Exhibit 13 of the renewal application,
Frandsen's report states the following:
Round Hill near Hyde Park, Utah is the transmitter site for KGNT. It is a
mountain
top location with fenced and locked access at the site. We have
constructed a 40 meter
squared fence outside of the occupational limit fence around the perimeter
of this site
with warning signs to enclose the area below occupational limits but above
public
exposure RFR limits. As such the occupational RFR limits apply inside the
inner fence.
Public limits apply outside the outer fence. The maximum RFR reading at
the site was
0.89 milliwatts/cm2 along the north inner fence at 0.5 meters from the
ground. Levels
along the other inner fence borders ranged from 0.13 milliwatts/cm2 to
0.32 milliwatts/cm2. Additionally, one location outside the inner fence
showed a reading of 0.79 milliwatts/cm2.
This was 5 meters west northwest of the northwest corner of the fenced
area at 0.5 meters
from ground level. This was the highest level between the two fence
borders. Levels at the entrance and inside the building were below these
levels. All readings were below the occupational limit of 1.0
milliwatts/cm2. RFR warning signs are present on all sides of the
perimeter fence. Readings outside the outer fence met the public exposure
limits. The site is determined to be in compliance with the occupational
and public RFR limits based on these readings. Survey readings were taken
on May 25, 2005 . . . . The meter used was the Holaday HI-2200 digital
model with E100 field probe. The instruments were calibrated on May 19,
2005.
Based on the statements made by Frandsen in Exhibit 13 of Station KGNT's
2005 renewal application, Frandsen was aware of the high levels of RFR at
the Station KGNT transmitter site since May 31, 2005, but failed to ensure
that the area was not publicly accessible. Because Frandsen "consciously
and deliberately" operated Station KGNT, we find that the violation of
section 1.1310 of the Rules was willful. The violation occurred on more
than one day and was, therefore, repeated. Based on the evidence before
us, we find that Frandsen apparently willfully and repeatedly violated
section 1.1310 of the Rules by exceeding the public RFR MPE limits in an
area accessible by the public, and by failing to adequately take measures
to prevent access to areas that exceeded the RFR exposure limits.
10. Section 73.1560(b) of the Rules states that, "[e]xcept as provided in
paragraph (d) of this section, the transmitter output of an FM
station...must be maintained as near as practicable to the authorized
transmitter output power and may not be less than 90%, nor more than
105% of the authorized power." The authorization for Station KGNT
authorizes a TPO of 2.05 kW. As discussed above, at the time of
inspection, Station KGNT's TPO was found to be 3.2 kW. Thus, on April
15, 2010, Frandsen was operating the Station KGNT transmitter at
approximately 156% of the authorized TPO value, in violation of
section 73.1560(b) of the Rules. The spatially averaged RFR
measurements made by the Denver agents on both April 14 and April 15,
2010, reveal that the Station KGNT transmitter was operating on April
14, 2010, with a TPO approximately 1 dB higher than on April 15, 2010.
Based on the evidence before us, that the Station KGNT transmitter
power was higher than authorized for more than one day, we find that
Frandsen willfully and repeatedly violated of section 73.1560(b) of
the Rules.
11. The Commission has determined that an appropriate base forfeiture
amount for violation of the RFR MPE limits is $10,000, reflecting the
public safety nature of the RFR rules. The base forfeiture amount for
exceeding power limits is $4,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, section 1.80, and
the statutory factors to the instant case, we conclude that Frandsen
is apparently liable for a forfeiture in the amount of $14,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, and sections 0.111, 0.204, 0.311, 0.314 and 1.80 of the
Commission's Rules, Frandsen Media Company, LLC is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of fourteen
thousand dollars ($14,000) for violations of sections 1.1310 and
73.1560(b) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Frandsen Media Company,
LLC, SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
14. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
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. Frandsen Media Company,
LLC, shall also send electronic notification on the date said payment
is made to WR-Response@fcc.gov.
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
Western Region, Denver District Office, 215 South Wadsworth Boulevard,
Suite 303, Lakewood, Colorado, 80226, and must include the NAL/Acct.
No. referenced in the caption. An electronic copy shall also be
emailed to WR-Response@fcc.gov.
The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits: (1)
federal tax returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted accounting practices
("GAAP"); or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status. Any claim
of inability to pay must specifically identify the basis for the claim by
reference to the financial documentation submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Frandsen Media Company, LLC, 810 West
200 North, Logan, Utah, 84323.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
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), 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: 73.1560(b).
On the west side of the fence, the agents marked a large rectangular area
of concern that extended 24 feet out from the fence and ran about 10 feet
in length from the center of the FM antenna to the north and extended
about 13 feet to the south relative to the center of the FM antenna. In
the rectangular area of concern, the fence enclosing the transmitter site
was less than 2 feet from the tower.
The personal RFR 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 limits.
The KGNT antenna is a three-bay, circular polarized antenna, Model CFM
LP-3.
See Letter from Brendan Holland, Davis Wright Tremaine, Counsel for
Frandsen Media Company, LLC, to Marlene H Dortch, Secretary, Federal
Communications Commission, dated April 26, 2010.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) recon. denied, 7
FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 1.1310. 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).
47 C.F.R. S: 1.1310, Table 1 and Note 2. See 47 C.F.R. S:S: 1.1307(b),
1.1307(b)(1), 1.1307(b)(5); Guidelines, Second Memorandum Opinion and
Order and Notice of Proposed Rulemaking, 12 FCC Rcd at 13538, 13540. 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 (released April 27, 2000); Public Notice, Reminder of
September 1, 2000, Deadline for Compliance with Regulations for Human
Exposure to Radiofrequency Emissions, 15 FCC Rcd 18900 (released Aug. 24,
2000).
47 C.F.R. S: 1.1310. See Entravision Holdings, LLC, Memorandum Opinion and
Order, 22 FCC Rcd 21718 (Enf. Bur. 2007) (the public exposure limits apply
when 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); Americom Las Vegas Limited Partnership, Memorandum
Opinion and Order, 21 FCC Rcd 14286, 14290 (2006) (the licensee of the
transmitter emitting the excessive RFR is liable for the failure to
provide appropriate signs in remote areas warning the public of excessive
RFR).
See, e.g., OET Bulletin 65 at 53 ("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.").
47 C.F.R. S:S: 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional guidance is
provided in OET Bulletin 65.
Americom Las Vegas Limited Partnership, 21 FCC Rcd at 14290 ("when a
licensee decides to depend on RFR warning signs rather than physical
barriers to ensure that members of the public do not access areas of RFR
in excess of the MPE public limits, the burden is on the licensee to
ensure that the RFR warning signs are plainly visible to the public from
every possible direction that the public may access the area of concern.
The burden is not on the public to attempt to find RFR warning signs.")
KGNT Application for Renewal of Broadcast Station License, FCC Form 303-S,
File No. BRH-20050531BSN, granted September 28, 2005 ("KGNT Renewal
Application").
KGNT Renewal Application at Exhibit 13.
See note 8 supra.
47 C.F.R. S: 1.1310.
47 C.F.R. S: 73.1560(b).
File No. BLH-830311AK.
A-O Broadcasting Corporation, Notice of Apparent Liability for Forfeiture,
17 FCC Rcd 24184 (2002) (the licensee of the transmitter emitting RFR in
excess of the maximum public exposure limits, that does not restrict
access to the RFR area of concern, is liable for a violation of Section
1.1310 of the Rules). The Commission's Forfeiture Policy Statement and
section 1.80 of the Rules do not specify a base forfeiture for violation
of the RFR maximum permissible exposure limits in section 1.1310. See
Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules
to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd
17087 (1997), ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
303 (1999); 47 C.F.R. S: 1.80. The fact that the Forfeiture Policy
Statement does not specify a base amount does not indicate that no
forfeiture should be imposed. The Forfeiture Policy Statement states that
"... any omission of a specific rule violation from the ... [forfeiture
guidelines] ... should not signal that the Commission considers any
unlisted violation as nonexistent or unimportant." Forfeiture Policy
Statement, 12 FCC Rcd at 17099. The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general forfeiture
authority contained in section 503 of the Act. Id.
Forfeiture Policy Statement, 12 FCC Rcd 17087 (1997); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
1.1310 and 73.1560(b).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-816
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Federal Communications Commission DA 11-816