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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Infinity Broadcasting ) File No. EB-04-TP-478
Corporation of Florida )
) NAL/Acct. No. 200532700005
Licensee of Station WQYK-FM )
Tampa, Florida ) FRN 0004036711
Facility ID # 28619
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
5, 2005
By the District Director, Tampa Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Infinity Broadcasting Corporation of
Florida (``Infinity''), licensee of station WQYK-FM, 99.5 MHz,
serving St. Petersburg, Florida, apparently willfully and
repeatedly violated Section 1.1310 of the Commission's Rules
(``Rules'')1 by failing to comply with radio frequency radiation
(``RFR'') maximum permissible exposure (``MPE'') limits
applicable to facilities, operations, or transmitters. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended (``Act''),2 that Infinity is apparently liable
for forfeiture in the amount of twenty thousand dollars
($20,000).
II. BACKGROUND
2. Infinity, licensee of station WQYK-FM, certified
compliance with the RFR MPE limits in its renewal application for
a licensed facility granted January 29, 2004.3 The application
contained an RFR exhibit for their location at the Park Tower
Office Building at 400 North Tampa Street, Tampa, Florida. The
exhibit 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. The exhibit also stated that a plan is in effect and
understood by all licensees at the antenna site to protect
workers accessing the penthouse roof. Finally, the exhibit
stated that access to the transmitting site is restricted and
properly marked with warning signs and thereby classified as a
controlled environment.
3. On May 25, 2004, agents from the Commission's Tampa
Office of the Enforcement Bureau (``agent'' or ``agents'')
inspected the rooftop of the Park Tower Office Building. 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. Using a calibrated
RFR meter, an agent found areas on the rooftop that exceeded the
general population limit by 75-200%. 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, an
agent, using a calibrated RFR meter, found that approximately 75%
of the penthouse rooftop exceeded the RFR MPE general population
limit. The agent also found an unmarked and un-posted area
exceeding the RFR MPE occupational limit within an 8-10 foot
radius of a tower containing a UHF TV antenna, later identified
as belonging to station WVEA-LP. The average power density level
for this area measured 1700% of the general population RFR MPE
limit or 340% of the RFR MPE occupational 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. The Park Tower Office Building'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.
4. On June 18, 2004, an agent returned to the penthouse
rooftop of the Park Tower Office Building, 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.
5. On July 1, 2004, agents again took measurements on the
penthouse rooftop of the Park Tower Office Building. When all
four stations were on the air, the RFR fields within an 8-10 foot
radius around station WVEA-LP's tower measured 1,865% of the
general population limit or 373% of the occupational limit.
6. 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.
7. On July 16, 2004, agents conducted measurements with
the four licensees located on the penthouse rooftop of the Park
Tower Office Building. When all four stations were on the air,
the average field for the area within an 8-10 foot radius around
station WVEA-LP's tower was 1,950% of the general population
limit or 390% of the occupational limit.4 With station WVEA-LP
off the air, the new baseline measurements were 100% of the
general population limit or 20% of the occupational limit.5
After station WQYK-FM was taken off the air, the readings dropped
from 20% of the occupational limit to 5.76%, which means station
WQYK-FM was causing 71.2% of the general population limit, 14.24%
of the occupational limit, or 0.1424 mW/cm2. Before leaving, the
agent 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 engineer for station WQYK-FM was 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 see what else needed to be done to give the workers knowledge
and control over their exposure. The agents again explained to
the station WQYK-FM engineer the RFR requirements.
8. 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 the station's responsibility to
comply with the Commission's RFR requirements.
9. On August 17, 2004, an agent re-inspected the penthouse
rooftop of the Park Tower Office Building. There was no sign
posted on the penthouse rooftop as requested on July 16 and 20.
The building's chief engineer stated the station WQYK-FM engineer
spoke to him briefly about the high fields on the penthouse roof,
but had not discussed any policy to limit rooftop access only to
those with RFR training.
10. On September 30, 2004, agents re-inspected the
penthouse rooftop. The agents found power density levels in
excess of the RFR MPE general population and occupational limits,
similar to those previously detected. 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.
11. On October 26, 2004, the building's chief engineer
stated that Infinity had not yet contacted him to restrict access
to the penthouse rooftop only to workers who had received RFR
training. 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.
III. DISCUSSION
12. Section 1.1310 of the Rules requires licensees to
comply with occupational and general population MPE limits for
electric and magnetic field strength and power density for
transmitters operating at frequencies from 300 kHz to 100 GHz.6
Further, the Commission'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.''7 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.''8 Table 1 in Section 1.1310 of the Rules provides
that the general population/uncontrolled RFR maximum permissible
exposure limit given in terms of mw/cm2 for a station operating
in the frequency range of 30-300 MHz is 0.2 mW/cm2.9 Table 1 in
Section 1.1310 of the Rules provides that the
occupational/controlled RFR maximum permissible exposure limit
given in terms of mw/cm2 for a station operating in the frequency
range of 30 MHz to 300 MHz is 1 mW/cm2.10 Licensees bear the
responsibility to restrict access to areas that exceed the RFR
MPE limits or to modify the facility and operation so as to bring
the station's operation into compliance with the RFR exposure
limits prior to worker or public access to the impacted area.11
13. According to the building's chief engineer, none of his
workers, who accessed the penthouse rooftop on a fairly regular
basis in the course of their duties, were aware of the areas that
exceeded the general population RFR MPE limit on the penthouse
rooftop. In addition, the building's chief engineer stated none
of these workers received any RFR training. Moreover, the areas
on the penthouse rooftop that exceeded the general population RFR
MPE limit were not marked in any way. Although a generic warning
sign was placed by the entrance to the main rooftop, this sign
could not be seen by workers approaching the penthouse rooftop
and was insufficient to warn workers of the hazards on the
penthouse rooftop.12 Thus, these workers were ``exposed as a
consequence of their employment, [were not] fully aware of the
potential for exposure, and [could] not exercise control over
their exposure.''13 Therefore, even though access was controlled
by locks, the penthouse rooftop was subject to the Commission's
general population limits.14
14. On May 25, June 18, July 1, July 16, and September 30,
2004, agents determined that approximately 75% of the penthouse
rooftop exceeded the general population RFR MPE limit. The
agents also found that Infinity's transmitter for station WQYK-FM
produced power density levels that were as much as 71.2% of its
general population limit. Accordingly, Infinity was responsible
for ensuring compliance with the RFR Rules. Infinity, however,
failed to limit worker access to the areas on the penthouse
rooftop that exceeded the general population limit. Workers were
able to gain entrance to the penthouse rooftop on a fairly
regular basis and had complete access to all areas on the
penthouse rooftop, including the area that was 1,950% of the
general population limit. Infinity also did not post any RFR
warning signs on the penthouse rooftop or its entrance and did
not contact the building's chief engineer about the hazard prior
to the agents' inspection. Infinity contributed more than 5% to
areas that exceeded the general population limit and failed to
provide workers knowledge of and control over their exposure.
15. On May 25, June 18, July 1, July 16, and September 30,
2004, agents determined that certain areas of the penthouse
rooftop exceeded both the general population and
occupational/controlled RFR MPE limits. Specifically, the 8-10
foot area around station WVEA-LP's tower measured 390% of the
occupational/controlled RFR MPE limit. Agents determined that
Infinity's transmitter produced power density levels that were
14.24% of its occupational/controlled RFR MPE limit in this area.
As detailed above, however, Infinity did not post any warning
signs regarding the occupational limits on the penthouse rooftop
and did not provide any RF training to the building's workers.
Infinity contributed more than 5% to an area that exceeded the
occupational limit and failed to provide workers knowledge of and
control over their exposure.
16. It is the unique intention of Section 1.1310 of the
Rules that the contribution of one station alone may not violate
the rule, while that station, when joined by the RF contribution
of other stations whose total RFR contributions exceed the MPE
limits, may find itself in violation. Consequently, we require
licensees to work together to ensure compliance. As Infinity
contributed over 5% of the total RFR exceeding the general
population and occupational MPE limits, it is equally responsible
for bringing the area into compliance, according to Section
1.1307 of our Rules.15 Based on the evidence, we find that
Infinity produced power density levels more than 5% of its
general population and occupational limits and failed to bring
the areas into compliance in apparent willful and repeated
violation of Section 1.1310 of the Rules.
17. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')16 does
not specify a base forfeiture for violation of the RFR maximum
permissible exposure limits in Section 1.1310.17 However, 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 rules.18 In assessing the
proposed monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Act, which include 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.19
18. We are troubled with Infinity's apparent disregard for
the Commission's RFR requirements. Areas on the penthouse
rooftop exceeded the general population/uncontrolled limit by
over 1,850 percent and the occupational/controlled RFR MPE limit
by over 290 percent. Infinity's station engineer admitted that
he was aware that areas exceeded the general population and
occupational limits and that station WQYK-FM was a contributor in
these areas, but he did not inform the building's engineer or
workers of this safety hazard and did not in any way highlight,
mark, or limit access to the areas. Even though another licensee
painted the areas exceeding the occupational level with yellow
lines, Infinity did not post an obvious warning sign in the
affected areas or warn the building's chief engineer in a timely
manner after receiving oral warnings on July 16 and July 20,
2004. Infinity failed to correct these violations even though it
was aware of the RFR requirements. In its application granted
January 29, 2004, Infinity certified that it was compliant with
the RFR Rules. Moreover, it specifically asserted in an exhibit
to its application that the transmitting site was ``clearly
identified and marked'' and that a plan was in effect and
understood by all licensees at the site to protect workers on the
penthouse roof. We also note that a company affiliated with
Infinity recently violated Section 1.1310 of the Rules.20
Accordingly, we believe a significant upward adjustment of the
base forfeiture amount is warranted, even though Infinity has
since come into compliance.21 Applying the Forfeiture Policy
Statement, Section 1.80, and statutory factors to the instant
case, we conclude that it is appropriate to increase the base
forfeiture amount for Infinity's apparent violations. Therefore,
we find Infinity apparently liable for a forfeiture in the amount
of $20,000.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended,22 and
Sections 0.111, 0.311, and 1.80 of the Commission's Rules,23
Infinity Broadcasting of Florida, licensee of station WQYK-FM, is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty thousand dollars ($20,000) for willful and
repeated violation of Section 1.1310 of the Rules by failing to
comply with general population and occupational radio frequency
radiation maximum permissible exposure limits.
20. 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, Infinity
Broadcasting of Florida SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
21. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Payment by check or money order may
be mailed to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago, IL
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. The payment
should note NAL/Acct. No. 200532700005, and FRN 0004036711.
Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and Receivable
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.24
22. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Tampa Office, Suite 1215, 2203 North Lois Avenue, Tampa,
FL 33607-2356 within thirty days of the release date of this
NAL, and must include the NAL/Acct. No. referenced in the
caption.
23. 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.
24. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by Certified Mail, Return Receipt Requested, and regular
mail, to Infinity Broadcasting Corporation of Florida, Suite 725,
2000 K Street, NW, Washington, DC 20006-1809.
FEDERAL COMMUNICATIONS
COMMISSION
Ralph Barlow
District Director
Tampa Office
Enforcement Bureau
cc: WQYK-FM
_________________________
147 C.F.R. § 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'').
247 U.S.C. § 503(b).
3All broadcast licensees were required to come into compliance
with RFR MPE limits as of September 1, 2000 or file an
Environmental Assessment. See Guidelines, Second Memorandum
Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd
at 13540; 47 C.F.R. § 1.1307(b)(5). In addition, all broadcast
licensees must demonstrate compliance with the RFR MPE limits, or
file an Environmental Assessment and undergo environmental review
by Commission staff, when filing for an initial construction
permit, license, renewal or modification of an existing license.
See Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13538; 47 C.F.R. § 1.1307(b).
4Although the agents stood in the same general area on the
penthouse rooftop, the measurements taken on May 25, June 18,
July 1, and July 16 differed slightly because the measuring spots
were not exactly identical.
5On July 16, Station WVEA-LP solely caused 1,850% of the general
population limit, 370% of the occupational limit, or 8.2 mw/cm2.
Station WVEA-LP is also responsible for ensuring the penthouse
rooftop's compliance with the RFR limits. See 47 C.F.R. §§
1.1307(b)(3), 1.1310.
6See 47 C.F.R. § 1.1310, Table 1.
7Guidelines, Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, 12 FCC Rcd at 13520-21, 13524; 47 C.F.R. §
1.1307(b)(3). Power density is equal to the square of the
electric field strength divided by the characteristic impedance
of free space (377 ohms). Similarly, power density is equal to
the square of the magnetic field strength times the
characteristic impedance of free space. The power density is
expressed in milliwatts per square centimeter. Guidelines,
Second Memorandum Opinion and Order and Notice of Proposed
Rulemaking, 12 FCC Rcd at n.74. See also Radio One Licenses,
LLC, Licensee of FM Radio Station KKBT et al, Forfeiture Order,
FCC 04-281 (rel. Dec. 10, 2004).
8See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.
9The 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. See 47 C.F.R. §
1.1310, Note 2 to Table 1.
10The 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. See 47 C.F.R. § 1.1310, Note 1 to Table
1.
1147 C.F.R. §§ 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional
guidance is provided in Office of Engineering and Technology,
Evaluating Compliance with FCC Guidelines for Human Exposure to
Radiofrequency Electromagnetic Fields (1997) (``OET Bulletin
65'').
12See Americom Las Vegas Limited Partnership, 19 FCC Rcd 9643
(Enf. Bur. 2004).
1347 C.F.R. § 1.1310, Note 2 to Table 1.
14See id. See also A-O Broadcasting Corporation, 17 FCC Rcd
24184 (2002).
15See 47 C.F.R. § 1.1307(b)(3).
16Forfeiture Policy Statement and Amendment of Section 1.80(b) of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
17The 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.
18A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).
1947 U.S.C. § 503(b)(2)(D).
20See Radio One Licenses, LLC, Licensee of FM Radio Station KKBT
et al, Forfeiture Order, FCC 04-281 (rel. Dec. 10, 2004).
21See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866
(2002) (base forfeiture amount tripled); American Tower
Corporation, 16 FCC Rcd 1282 (2002) (base forfeiture amount
doubled).
2247 U.S.C. § 503(b).
2347 C.F.R. §§ 0.111, 0.311, 1.80 and 1.1310.
24See 47 C.F.R. § 1.1914.