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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Wirelessco, L.P.
Licensee of Station KNLF254
Phoenix, Arizona
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File No.: EB-FIELDWR-15-00018433
NAL/Acct. No.: 201632940002
FRN: 0002316545
* NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 12, 2015 Released: November 12, 2015
By the District Director, San Diego Office, Western Region, Enforcement Bureau:
INTRODUCTION
* Wirelessco, L.P. (Wirelessco), is the licensee of Broadband Personal Communications Service (Broadband-PCS) station KNLF254, Phoenix, Arizona, located on an office building rooftop in that city. Wirelessco apparently has failed to adequately prevent public access to the areas immediately in front of the antenna for that station where radiofrequency (RF) emissions exceed what is permissible for exposure to the general population. Accordingly, we propose a penalty of $25,000 for failing to comply with the RF maximum permissible exposure (MPE) limits applicable to all such stations located in areas accessible to the public and workers. Wirelessco's inadequate warning signage and lack of barriers did not comply with the FCC's stated expectations for restricting access to areas that present a potential public safety hazard. Accordingly, a monetary penalty is warranted.
BACKGROUND
* The Commission requires licensees to comply with RF exposure limits. The Commission's rules (Rules) specify guidelines and procedures for evaluating the environmental effects of RF exposure from FCC-regulated transmitters. The Rules include 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, have protections for persons who may be exposed to RF as part of their job, and have the ability to control their level of exposure ("occupational/controlled" exposure), as well as protections for the public, and those workers who are unable to control their level of RF exposure in their work ("general population/uncontrolled" exposure).
* On January 14, 2015, in response to a complaint from the owner of an office building located at 4040 E. McDowell Road, Phoenix, Arizona (Building), agents from the Enforcement Bureau's San Diego Office inspected the rooftop of the Building. The rooftop is divided into three sections, each approximately 25 feet wide and running the length of the Building. Several antenna panels utilized by cellular, AWS, and Broadband-PCS providers are located in the southern section of the Building (Antenna Area). The northern section has a penthouse area, which itself is enclosed, but has two outdoor patios, one in the northwest corner of the Building and one in the northeast corner of the Building. The penthouse patios and the Antenna Area are bisected by an elevated platform on the middle section which is approximately 40 inches higher than the floor in each of the patios and the Antenna Area. This center section can be easily accessed by anyone on either patio, allowing unrestricted access to the Antenna Area. Access to the rooftop is gained by taking an elevator or a staircase to the top floor of the Building. Exiting the elevator or stairwell, individuals can access the penthouse, and the two patios atop the Building, or, if they have a key or the combination to a key lockbox, can unlock the door and walk directly onto the Antenna Area.
* At the time of the inspection, there were no RF exposure notices or signs mounted near or in the penthouse or patios warning of the hazard in the adjacent areas, although there were two warning signs mounted on the door leading directly to the Antenna Area. Interviews with the property owner, manager, and maintenance staff revealed that neither they nor the Building's contract or maintenance workers had RF exposure safety training. According to the property manager, she and other Building workers work on the rooftop, including the Antenna Area, from time to time but, due to inadequate signage and barriers, they are not aware of areas to avoid or steps to take to limit RF exposure. The Building owner complained to the agents that Building staff have difficulty gaining RF exposure safety assistance from the carriers that use the rooftop.
* Wirelessco operates Station KNLF254 on the rooftop using two antenna panels on the southwest section of the Antenna Area. One antenna panel is facing to the southwest (Panel 1) and one antenna panel to the southeast (Panel 2). Panel 1 is located approximately three feet from the south edge of the rooftop and ten feet from the west edge of the rooftop, while Panel 2 is located approximately 10 feet from the edge of the roof top and twenty-six feet from the rooftop door. At the time of the inspection, the San Diego agents observed no barriers impeding access to the front of the antenna panels, where RF exposure would be the highest. A worn, fading, and partially obstructed RF exposure sign was posted on each of the antenna panels. Neither sign delineated or explained what areas may exceed the limits. The agents observed graffiti on the front of another antenna panel on the rooftop, not associated with Wirelessco, as well as pens and cigarette butts in the Antenna Area, suggesting that the general public has actually accessed the panels in the past.
* Because the front of the panels were easily accessible to anyone walking on the roof and into the Antenna Area, the agents made spatially-averaged discrete measurements of RF emissions twelve inches in front of each of the antenna panels, utilizing a Narda SRM-3000 Narrowband Meter and Probe. RF emissions from Station KNLF254 were measured at 1.84 mW/cm[2] (184% of the general population MPE limits) on Panel 1, and at 1.80 mW/cm[2] (180% of the general population MPE limits) on Panel 2. The next day, January 15, 2015, the agents returned to the rooftop and, finding the same conditions concerning accessibility to the areas in front of the antenna panels, made another set of measurements in front of both antenna panels. RF emissions from Station KNLF254 were measured at 1.78 mW/cm[2] (178% of the general population MPE limits) on Panel 1, and at 1.98 mW/cm[2] (198% of the general population MPE limits) on Panel 2.
* On January 16, 2015, the agents met with a representative for Wirelessco on the rooftop at the Building and showed him the accessibility of the rooftop from the two patios located in the northeast and northwest of the Building, as well as the evidence of general public access to the Antenna Area of the rooftop including cigarette butts and pens, as well as graffiti on one of the antenna panels. Agents also informed the Wirelessco representative of statements from the Building management concerning lack of adequate RF exposure training. The agents also discussed the inadequate RF exposure signage, the lack of barriers and inadequate informational postings to clearly indicate areas to avoid or how to limit RF exposure. The Wirelessco representative informed the agents that Wirelessco would take action to correct the deficiencies found during the investigation to bring the site into compliance with the Rules.
DISCUSSION
* We find that Wirelessco apparently willfully and repeatedly violated Section 1.1310 of the Rules, by failing to comply with the radiofrequency MPE limits applicable to its transmitters and facilities. 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 Sections 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.
A. Wirelessco Apparently Violated Section 1.1310 of the Rules by Failing to Comply With the Radiofrequency Maximum Permissible Exposure Limits on the Rooftop
* We find that the evidence in this case is sufficient to establish that Wirelessco willfully and repeatedly violated Section 1.1310 of the Rules. Section 1.1310 of the Rules requires licensees to comply with RF exposure limits. Table 1 in Section 1.1310 of the Rules provides that the general population RF MPE limit for a station operating in the frequency range of 1,500 MHz to 100,000 MHz is 1.00 mW/cm[2]. The general population or uncontrolled exposure limits "apply in situations in which the general public may be exposed, or in which 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." The phrase "fully aware" in the context of applying these exposure limits means that:
an exposed person has received written and/or verbal information fully explaining the potential for RF exposure resulting from his or her employment. With the exception of transient persons, this phrase also means that an exposed person has received appropriate training regarding work practices relating to controlling or mitigating his or her exposure.
This training "is not required for transient persons, but they must receive written and/or verbal information and notification (for example, using signs) concerning their exposure potential and appropriate means available to mitigate their exposure." The phrase "exercise control" means that "an exposed person is allowed to and knows how to reduce or avoid exposure by administrative or engineering controls and work practices, such as use of personal protective equipment or time averaging of exposure." Licensees can demonstrate compliance by restricting public access to areas where RF exceeds the general population MPE limits.
* The inspections conducted by the San Diego agents on January 14 and 15, 2015, revealed that publicly accessible areas in front of two antenna panels operated by Wirelessco on the rooftop of the Building exceeded the general population RF MPE limits, measuring from approximately 175% to 200% of the MPE limit for those transmitters and facilities. While there were RF exposure safety signs on the antenna panels, the signs were worn, faded and obstructed, and did not explain where the areas of concern were that exceeded the MPE limits, nor was access to those areas of concern restricted. There were no actual barriers restricting access to the areas of concern, nor were there markings on the rooftop accompanied by signage to delineate the areas and explain the dangers associated with entering them. The areas of concern were accessible to all maintenance and contract workers employed by the Building as well as to the general public who could access the Antenna Area by walking over from two patios also on the rooftop. Material left behind in the Antenna Area and graffiti on an antenna panel in the Antenna Area indicated that members of the public did access the Antenna Area and the areas of concern, and workers for the Building stated they accessed the Antenna Area regularly but had no RF exposure safety training and did not know what particular areas to avoid.
* Wirelessco bears the responsibility to restrict access to the noncompliant areas that exceed the public RF exposure limits, with barriers, markings, and appropriate signage, or to modify the facility and operation so as to bring its stations' operations within the RF exposure limits prior to public or worker access to the impacted area. Because Wirelessco failed to do so, we find that Wirelessco's operation of Broadband-PCS station KNLF254 exceeded the general population/uncontrolled RF MPE limits and violated Section 1.1310 of the Rules.
* Proposed Forfeiture
* Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that "willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission." Here, Section 503(b)(2)(B) of the Act authorizes us to assess a forfeiture against Wirelessco of up to $160,000 for each day of a continuing violation, up to a statutory maximum of $1,575,000 for a single act or failure to act. In exercising our forfeiture authority, we must consider 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 such other matters as justice may require." In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator.
* The Commission has determined that an appropriate base forfeiture amount for violation of the RF MPE limits is $10,000, reflecting the public safety nature of the RF exposure rules. We recognize that Wirelessco is part of a multi-billion dollar enterprise. In this respect, the Commission has determined that large or highly profitable companies should expect the assessment of higher forfeitures for violations of the Act and the Rules. Thus, to ensure that the forfeiture liability serves as an effective deterrent and not simply a cost of doing business for Wirelessco, a significant upward adjustment of the base forfeiture is justified. Therefore, applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that Wirelessco is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000).
ORDERING CLAUSES
* Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act and Section 1.80 of the Rules, Wirelessco, L.P., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for willful and repeated violations of Section 1.1310 of the Rules.
* IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Wirelessco, L.P., SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 18 below.
* Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Wirelessco, L.P., shall also send electronic notification on the date said payment is made to WR-Response@fcc.gov. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters "FORF" in block number 24A (payment type code). Below are additional instructions that should be followed based on the form of payment selected:
* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, Federal Communications Commission, 445 12th Street, SW, Room 1-A625, Washington, DC 20554. Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
* 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement to Federal Communications Commission, Enforcement Bureau, Western Region, San Diego Office, 4542 Ruffner Street, Suite 370, San Diego, CA 92111, and include the NAL/Acct. No. referenced in the caption. The statement must also be e-mailed 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 principles (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.
* IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Wirelessco, L.P., 12502 Sunrise Valley Drive, M/S: VARESA0209 Reston, VA 20196.
FEDERAL COMMUNICATIONS COMMISSION
James T. Lyon
District Director
San Diego Office
Western Region
Enforcement Bureau