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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
A-O Broadcasting Corporation ) File No. EB-01-DV-334
)
Licensee of Station KTMN(FM) ) NAL/Acct. No.
200332800001
Cloudcroft, New Mexico ) FRN # 0005-0204-74
Facility ID #89049 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 14, 2002 Released: November 18, 2002
By the Commission:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that A-O Broadcasting Corporation (``A-O''),
licensee of FM radio station KTMN, Cloudcroft, New Mexico,
apparently willfully and repeatedly violated Sections 1.1310,
11.35, 73.1125, and 73.1400 of the Commission's Rules
(``Rules'')1 by failing to comply with radio frequency radiation
maximum permissible exposure limits applicable to transmitters on
towers, failing to have EAS equipment installed and operating,
failing to maintain a main studio and failing to have adequate
transmission system control. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended (``Act''),2
that A-O is apparently liable for a forfeiture in the amount of
twenty-eight thousand dollars ($28,000).
II. Background
2. In 1996, the Commission amended its rules to adopt new
guidelines and procedures for evaluating the environmental
effects of radio frequency radiation (``RFR'') from FCC-regulated
transmitters.3 The Commission adopted maximum permissible
exposure (``MPE'') limits for electric and magnetic field
strength and power density for transmitters operating on towers
at frequencies from 300 kHz to 100 GHz.4 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.5 The limits for occupational exposure also apply
in situations where an individual is transient through a location
where the occupational limits apply, provided that he or she is
made aware of the potential for exposure. The more stringent
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.6
3. An applicant for an initial construction permit,
license, or renewal or modification of an existing license is
generally required to perform the necessary analysis (e.g.,
calculations and/or measurements) to determine whether a
particular transmitting facility on a tower complies with the RFR
exposure limits. If, on the basis of its analysis, the applicant
determines that the facility complies with the RFR exposure
limits, the applicant certifies compliance as part of its
application. If, on the other hand, the applicant determines
that operation of the facility will not comply with the RFR
exposure limits, the applicant is required under Section
1.1307(b) of the Rules either to prepare an Environmental
Assessment and undergo environmental review by Commission staff
or to amend its application so as to comply with the RFR limits.7
The Commission's Office of Engineering and Technology (``OET'')
has prepared OET Bulletin 65, ``Evaluating Compliance with FCC
Guidelines for Human Exposure to Radiofrequency Electromagnetic
Fields,'' to provide assistance to applicants in determining
whether proposed or existing transmitting facilities on towers
comply with the RFR exposure limits.
4. On October 29, 2001, the FCC's Denver, Colorado Field
Office (``Denver Office'') received a complaint alleging that FM
broadcast station KTMN in Cloudcroft, New Mexico, was not
operating at the authorized power and was not in compliance with
the FCC's RFR tower guidelines due to the antenna's low radiation
center above ground level (``AGL''). KTMN is authorized to
operate on frequency 97.9 MHz with an effective radiated power
(``ERP'') of 100 kW using a Superior Broadcast 8-bay antenna
model with 0.75 wavelength spacing, operating with a center of
radiation equal to 18 meters AGL.8 The station authorization for
KTMN also includes the following special operating conditions:
(1) ``If the licensee makes any changes in facilities via
modifications of license application in accordance with 47 C.F.R.
73.1690(c), the subsequent Form 302-FM, application for license,
must include a revised RF field showing to demonstrate continued
compliance with the FCC guidelines''; (2) ``Warning signs which
describe the radiofrequency electromagnetic (RF) field hazard
must be posted at appropriate intervals. These signs must be at
least 8 meters distant from the base of the tower. Measures must
be taken so that persons who are authorized access to the site
are not exposed to levels in excess of the FCC guidelines''; and
(3) ``The permittee/licensee in coordination with other users of
the site must reduce power or cease operation as necessary to
protect persons having access to the site, tower or antenna from
radiofrequency electromagnetic fields in excess of FCC
guidelines.''
5. The complainant's information indicated that the
antenna was placed significantly lower on the antenna structure
than authorized. Based on pictures of the antenna structure
provided by the complainant, it appeared that the antenna was
mounted only 13 meters AGL, rather than 18 meters AGL as required
in the station authorization. Mathematical RFR modeling
calculations performed by the Denver Office staff indicated that
operation of station KTMN with the transmitting antenna mounted
only 13 meters AGL created a significant potential for RFR levels
at the base of the tower and beyond in excess of the FCC's
exposure limits for the general population set forth in Section
1.1310 of the Rules.
6. On November 14, 2001, FCC agents from the Denver
Office conducted an inspection of the KTMN transmitting facility
in Cloudcroft, New Mexico. The agents found the KTMN
transmitting antenna, a Superior Broadcast 8-bay antenna with
0.75 wavelength spacing, side mounted approximately 13 meters AGL
on a United States Forest Service (``USFS'') fire lookout tower
at the authorized location. The top bay of the antenna was level
with the lookout platform. RFR warning signs were placed on a
2.5 meter tall ground fence approximately three meters from the
base of the tower. The lookout tower was in a gated and locked
area approximately 30 meters from Forest Service Road 175 (``FSR
175''). The agents also noted that numerous vehicles used FSR
175 during the time that the agents were at the KTMN site.
7. When the agents arrived at the transmitter site, the
station was not operating. KTMN's owner subsequently advised the
agents that the station had been off the air for one week,
following a November 7, 2001, electrical surge which affected the
programming capabilities of KTMN. Due to the serious public
safety nature of the allegations in the complaint, the agents
asked KTMN's owner to turn the transmitter on so that they could
take RFR measurements. KTMN's owner turned the transmitter on to
40% of the authorized power and transmitted an unmodulated
carrier (i.e., a radio signal with no programming material being
broadcast). The owner was not able to achieve 100% authorized
power and admitted the most the station ever achieved was about
60% of the authorized power. The owner stated that he had no
monitoring equipment or remote control for the station, but that
he would monitor the station on a consumer-grade portable
receiver at his residence in Alamogordo to confirm the station
was on the air.
8. At 40% of the authorized power, the agents found
publicly accessible areas outside the fence surrounding the
lookout tower that significantly exceeded the FCC's RFR MPE
limits for the general population. The agents also found
numerous areas on the stairway of the lookout tower in excess of
both the public and the occupational MPE limits. Inside the
lookout platform, RFR fields exceeded the public MPE limits. In
particular, using spatially averaged techniques to measure the
RFR fields, the agents found the following:
Location RFR as RFR Public % Over RFR
Measured by MPE Limit Public MPE
Agents (mW/cm2)9 Limit
(mW/cm2)
20 to 60 feet from 0.63 0.2 315
tower base
Lookout tower 3.010 0.2 1500
stairway
Lookout platform 0.7 0.2 350
area
9. The temporary special use permit issued by the USFS to
the owner of A-O expressly provided USFS personnel unrestricted
access to the structure and no arrangements existed for USFS
personnel to contact the licensee when accessing the tower. In
addition, the agents spoke with USFS personnel and determined
that USFS rangers with access to the lookout tower stairway and
platform had no training with respect to RFR and no knowledge of
RFR exposure potential from the radio transmitting antenna
mounted just a few feet from their fire lookout.
10. The agents also found that KTMN had no main studio and
had no EAS equipment installed. Upon arriving in Cloudcroft, the
agents first attempted to locate KTMN's main studio by going to
the addresses specified in A-O's construction permit and license
applications, but they did not find a main studio at these
locations.11 The agents also searched the local telephone
directory but found no listing for KTMN or A-O. A-O's owner was
not present at the KTMN transmitter site when the agents
initially arrived at the site. When A-O's owner subsequently met
the agents at the transmitter site, he told the agents that he
was temporarily using the transmitter building as a main studio.
However, the agents observed that the transmitter building was
contained within the locked fence that surrounded the lookout
tower and therefore was not accessible to the public. In
addition, the agents noted that the transmitter building was
filled with equipment and there was little room, if any, for more
than one person to move around in the building. Furthermore, the
owner stated that he visited the site every day, or every other
day, but had no other personnel present at the transmitter site
when he was not there. The owner advised the agents that a
permanent studio was being constructed in downtown Alamogordo,
but the building was undergoing renovation. The agents observed
EAS equipment in a box in the transmitter building, but no EAS
equipment was installed or operational. The inspection revealed
numerous other rule violations, including, among other things:
failure to operate at the station at the minimum power of 90% of
the authorized power of 100 kW (47 C.F.R. § 73.1560(b)); failure
to follow the minimum operating schedule (47 C.F.R. §
73.1740(a)); failure to post the station license (47 C.F.R. §
73.1230); failure to designate a chief operator (47 C.F.R. §
73.1870(a)); and failure to maintain a public inspection file (47
C.F.R. § 73.3526).
11. On November 21, 2001, the Denver Office issued a
warning letter to A-O advising A-O that KTMN was not in
compliance with RFR exposure limits. The letter requested that
prior to KTMN's return to operational status, measurements be
made to determine the appropriate levels at which operation would
comply with the FCC's RFR limits at: (1) ground level; (2) on
the stairway leading to the lookout; and (3) inside the lookout
platform area.
12. On December 5, 2001, A-O submitted a reply to the
warning letter. A-O stated that KTMN would take all appropriate
action to comply with the FCC's RFR limits and that the RFR
problem would be best dealt with by relocating the transmitting
facilities of KTMN. A-O's reply also stated that both KTMN
personnel and USFS rangers had keys to the locked gate and that
areas inside the fence would be kept below the public limits when
any person accessed the lookout tower. A-O further asserted that
because a theoretical RFR analysis as outlined in OET Bulletin 65
had been completed for KTMN and because the Commission granted A-
O a construction permit and license for KTMN after reviewing this
analysis, the Commission now had no right to penalize A-O for
violation of the RFR rules.
13. By letter dated November 20, 2001,12 A-O notified the
Commission that on November 7, 2001, KTMN ceased transmitting as
a result of a transient failure of the station's computer. A-O
further stated that KTMN would remain silent in order to complete
improved studio facilities and to make some adjustments to its
transmitting facilities and that if these matters caused KTMN to
remain silent for longer than 30 days, A-O would seek special
temporary authority (``STA'') to remain silent pursuant to
Sections 73.1635 and 73.1740 of the Rules.13 A-O filed a request
for STA with the Media Bureau to permit KTMN to remain silent on
March 14, 2002, approximately four months after KTMN suspended
operations, and amended its STA request on June 10, 2002, and
again on June 21, 2002. In the STA request, A-O stated that in
November 2001, the Denver Office determined that KTMN's
transmitting antenna on the USFS lookout tower created a risk of
excessive RF exposure to nearby persons; that on March 4, 2002,
the USFS requested that the transmitter and antenna bays be
removed from the authorized site; and that it was negotiating
with the USFS to relocate the transmitter to a new site. On June
25, 2002, the Media Bureau granted A-O STA for KTMN to remain
silent through November 7, 2002. On August 22, 2002, A-O filed
an application seeking authorization to relocate the transmitter
for KTMN to a new site.14
III. Discussion
14. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully 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.15 The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.16 The term ``repeated'' means
that the violation occurred on more than one day.17
15. Section 1.1310 of the Rules requires licensees to
comply with RFR exposure limits.18 Table 1 in Section 1.1310
provides that the MPE limit for the general population from a
radio station operating in the frequency range 30-300 MHz is
0.200 mW/cm2 and the MPE limit for occupational or controlled
exposure from a station operating in this frequency range is 1
mW/cm2.
16. A-O certified in its construction permit and license
applications that operation of station KTMN in Cloudcroft, New
Mexico would comply with the FCC's RFR exposure limits and would
not require the filing of an Environmental Assessment. The
construction permit for KTMN authorized A-O to construct the
station with the antenna radiation center at 18 meters AGL.19 A-
O certified in its application for a license to cover the
construction permit that the station was constructed as
authorized in the construction permit. However, A-O did not
construct KTMN as authorized.20 The antenna was mounted at 13
meters AGL, rather than the authorized 18 meters AGL. In
addition, the license for KTMN contained special RF operating
conditions, including a requirement for a revised RF field study
in the event of any modification of the authorized facilities.
A-O did not submit a revised RF study to demonstrate that an
antenna mounted at 13 meters AGL would comply with the RFR limits
as required by KTMN's license.
17. The license for KTMN also included special operating
conditions requiring A-O to post RF warning signs at least eight
meters from the base of the tower and to reduce power or cease
operation as necessary to protect persons having access to the
site, tower or antenna from RFR fields in excess of FCC limits.
A-O did not comply with these conditions. Warning signs were
only found on a fence three meters from the base of the tower.
The USFS rangers that could access the tower and lookout were not
informed of the RFR hazard and were never instructed to contact
the licensee before accessing the stairway or lookout platform on
the tower. Additionally, the KTMN transmitter site was not
remote and was easily accessible to the general public.
18. The USFS rangers who had access to the lookout tower on
which KTMN's antenna was mounted had no training with respect to
RFR and no knowledge of the potential impact of RFR exposure.
Absent such training and knowledge, the rangers are considered
members of the general population. Furthermore, as noted above,
the area surrounding the KTMN transmitter site was readily
accessible to the general public. Thus, the RFR exposure limits
for the general population set forth in Section 1.1310 apply in
this case. Based on RFR modeling of the transmitter at the
authorized power and on-site measurements at 40% of the
authorized power, FCC agents determined that operation of KTMN as
constructed created RFR fields that exceeded the RFR exposure
limits for the general population. With the station operating at
only 40% of the authorized power,21 the FCC agents found
spatially averaged RFR fields which were more than 300% over the
limits for maximum permissible exposure by the public at
distances of 20 to 60 feet from the base of the tower, which
includes areas outside of the fence surrounding the lookout tower
that were accessible to the general public and within the lookout
platform. In addition, the agents found spatially averaged RFR
fields which were more than 1500% over the limits for maximum
permissible exposure by the public on the stairway leading to the
lookout tower. Given that the RFR fields exceeded the public MPE
limits by more than 300% with the station operating at only 40%
of authorized power at the time of the inspection on November 14,
2001, it is clear that KTMN was not in compliance with the MPE
limits during its operation at higher power levels between
October 5, 2001, when the license for KTMN was granted, and
November 7, 2001, when A-O took the station off the air.
Accordingly, based on the evidence before us, we find that A-O
apparently willfully and repeatedly violated Section 1.1310 of
the Rules during the period from October 5, 2001 and November 7,
2001 by exceeding the RFR exposure limits for the general
population and failing to take measures to adequately prevent the
public from accessing areas that exceeded the RFR exposure
limits.
19. Section 11.35(a) of the Rules states in part that all
broadcast stations are ``responsible for ensuring that EAS
Encoders, Decoders, and Attention Signal generating and receiving
equipment used as part of the EAS are installed so that
monitoring and transmitting functions are available during the
times that stations ... are in operation.''22 At the time of
inspection, no EAS equipment was installed or operational at
station KTMN. Based on the evidence, we find that A-O apparently
willfully and repeatedly violated Section 11.35(a) of the Rules
by failing to have EAS equipment installed and operational.
20. Section 73.1125(a) of the Rules states in part that
``[e]ach AM, FM, or TV broadcast station shall maintain a main
studio at one of the following locations: (1) within the
station's community of license; (2) at any location within the
principal community contour of any AM, FM, or TV Broadcast
station licensed to the station's community of license; or (3)
within twenty-five miles from the reference coordinates of the
center of its community of license as described in
§73.208(a)(1).''23 In addition, the station's main studio must
serve the needs and interests of the residents of the station's
community of license. To fulfill this function, a station must,
among other things, maintain a meaningful managerial and staff
presence at its main studio.24 The Commission has generally
defined ``meaningful presence'' as full-time managerial and full-
time staff personnel and has stated that there must be
``management and staff presence'' on a full-time basis during
normal business hours to be considered ``meaningful.''25
Further, with respect to management personnel, the Commission has
stated that they need not be ``chained to their desks'' but that
they would be required to report to work at the main studio on a
daily basis, spend a substantial amount of time there, and use
the main studio as their ``home base.''26 Although A-O's owner
stated that he was temporarily using KTMN's transmitter building
as a main studio, it is apparent that KRMN had no main studio
presence in the community at the time of the inspection. The
transmitter building was contained within a locked fence and
therefore was inaccessible to the public; there was little room,
if any, for more than one person to move around in the
transmitter building; there was no listing for KTMN or A-O in the
local telephone directory; and there was no public inspection
file. Moreover, A-O did not maintain a meaningful management and
staff presence at the transmitter site. In this regard, A-O's
owner told the agents that he visited the site every day, or
every other day, but had no other personnel present at the
transmitter site when he was not there. Therefore, based on the
evidence, we conclude that A-O failed to maintain a main studio
in apparent willful and repeated violation of Section 73.1125 of
the Rules.27
21. Licensees are also responsible for operating their
broadcast stations within tolerances specified by applicable
technical rules contained in this part and in accordance with the
terms of the station authorization. Section 73.1400 of the Rules
allows stations to employ various methods or levels of
transmission system monitoring and supervision to preclude out-
of-tolerance operation and to ensure compliance with the
transmission system control requirements of Section 73.1350. At
the time of the inspection, A-O's owner admitted that he did not
have ongoing supervision of the transmission system by a station
employee or other person designated by the licensee, did not have
an automatic transmission system to alert a contact person in the
event of a technical malfunction, and did not have a remote
control whereby the transmission system could be monitored and
controlled for compliance with Section 73.1350. Use of a
consumer-grade portable receiver to tune into the station does
not meet the transmission system monitoring and control
requirements of Section 73.1400. Based on the evidence, we
further find that A-O apparently willfully and repeatedly
violated Section 73.1400 of the Rules by failing to have adequate
transmission system monitoring and control.
22. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')28 does
not specify a base forfeiture for violation of the RFR maximum
permissible exposure limits for transmitting tower antennas in
Section 1.1310.29 However, the FCC has set a base forfeiture
amount of $10,000 for failure to comply with other public safety
related rules, such as prescribed antenna structure lighting
and/or marking rules related to public and private air navigation
safety. Based on the public safety nature of the RFR maximum
permissible exposure limits, we conclude that a base forfeiture
amount of $10,000 for failure to comply with the RFR exposure
limits is appropriate. The Forfeiture Policy Statement sets a
base forfeiture amount of $8,000 for failure to install EAS
equipment,30 a base amount of $7,000 for failure to maintain a
main studio,31 and a base amount of $3,000 for violation of
transmitter control and metering requirements.32 Thus, the total
base forfeiture amount for all of A-O's violations is $28,000.
23. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act,33 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. We believe that the seriousness of the
safety violations, including the high levels of RFR resulting
from A-O's failure to construct the station according to the
terms of the license and failure to comply with the special
operating conditions, coupled with the lack of installed and
operational EAS equipment, failure to maintain a main studio, and
failure to maintain positive control of the transmitter, warrant
the proposed $28,000 forfeiture amount. Accordingly, applying
the Forfeiture Policy Statement and statutory factors to the
instant case, we conclude that A-O is apparently liable for a
$28,000 forfeiture.
IV. Ordering Clauses
24. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules,34 A-O
Broadcasting Corp., is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of twenty-eight thousand dollars
($28,000) for willfully and repeatedly violating Sections 1.1310,
11.35, 73.1125, and 73.1400 of the Rules.
25. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, A-O Broadcasting Corp., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
26. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
27. The response, if any, must be mailed to the Office of
the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include the
NAL/Acct. No. referenced in the caption.
28. 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.
29. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.35
30. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC
is engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Enforcement Bureau - Technical
and Public Safety Division. Your certification should indicate
whether you, including your parent entity and its subsidiaries,
meet one of the definitions set forth in the list provided by the
FCC's Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this Notice of Apparent Liability.
This information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
31.
32. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested to A-O Broadcasting Corp., Attention: Robert
Flotte, 3001 North Florida Avenue, Alamogordo, New Mexico 88310-
9794, and its counsel, Paul Brown, Esq., Wood, Maines & Brown,
Chartered, 1827 Jefferson Place, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. §§ 1.1310, 11.35, 73.1125, and 73.1400.
2 47 U.S.C. § 503(b).
3 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).
4 See 47 C.F.R. § 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).
5 47 C.F.R. § 1.1310, Note 1 to Table 1.
6 47 C.F.R. § 1.1310, Note 2 to Table 1.
7 47 C.F.R. § 1.1307(b).
8 The former Mass Media Bureau granted A-O's application for a
license to cover the construction permit for Station KTMN on
October 5, 2001 (File No. BLH-20010924AAM).
9 This is the MPE limit for the general population set forth
in Section 1.1310 of the Rules for radio stations operating in
the frequency range 30-300 MHz. KTMN is licensed to operate on
97.9 MHz.
10 This value was the maximum limit of the meter, Narda 8718
and Type 8722 probe combination.
11 One of these locations was a private residence formerly
owned by A-O's owner, while the other was a retirement home
managed by A-O's owner.
12 The Commission received this letter on January 9, 2002.
13 47 C.F.R. §§ 73.1635 and 73.1740. Section 73.1740(a)(3) of
the Rules provides that if causes beyond the licensee's control
make it impossible to continue operating, the station may
discontinue operation for a period of no more than 30 days
without further authorization from the FCC. However, the
licensee must notify the FCC no later than the tenth day after it
discontinues operation. In addition, if the causes beyond the
control of the licensee make it impossible to resume operation
within the 30-day period, the licensee must make a written
request for such additional time as may be deemed necessary no
later than the 30th day. 47 C.F.R. § 73.1740(a)(3).
14 File No. BPH-20020822AAC.
15 47 U.S.C. § 503(b).
16 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
17 Section 312(f)(2) 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 U.S.C. § 312(f)(2).
18 47 C.F.R. § 1.1310.
19 The former Mass Media Bureau granted A-O's construction
permit application on September 24, 1998 (File No. BPH-
19971030MG).
20 Because A-O did not construct KTMN as authorized in the
construction permit, we reject A-O's claim in response to the
Denver Office's warning letter that the Commission cannot now
penalize it for violation of the RFR rules. The Commission's
review of the RFR analysis provided by A-O in its construction
permit application was based on A-O's representation that the
antenna would be mounted with a center of radiation 18 meters
AGL.
21 A-O indicated that it had operated at up to 60% of
authorized power. We use the lower 40% figure because that was
the power when the staff took measurements. The RF radiation
problem would have been even worse when the station operated at
41%-60% of authorized power.
22 47 C.F.R. § 11.35(a).
23 47 C.F.R. § 73.1125(a).
24 See Main Studio and Program Origination Rules, 2 FCC Rcd
3215, 3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
25 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992) (``Jones
Eastern'').
26 Jones Eastern, 7 FCC Rcd at 6802.
27 See B&C Kentucky, LLC, 16 FCC Rcd 9305 (Mass Media Bur.,
Video Services Div., 2001) (concluding that a television
licensee's transmitter building was not a main studio where no
employees regularly worked at that location, no production
equipment or station files were maintained there, and the
building was contained within a locked fence and therefore was
inaccessible to the public).
28 12 FCC Rcd 17087 (1997), recon denied, 15 FCC Rcd 303
(1999).
29 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.
30 See e.g., Marie L. Salazar, 17 FCC Rcd 14090, 14093 (2002)
(``Salazar'') (proposing an $8,000 forfeiture for failure to
install and maintain operational EAS equipment); Arnold
Broadcasting Company, Inc., 16 FCC Rcd 13600, 13602 (2001)
(``Arnold'') (assessing an $8,000 forfeiture for failure to
install and maintain operational EAS equipment).
31 See e.g., Salazar, 17 FCC Rcd at 14093 (proposing a $7,000
forfeiture for violation of the main studio rule); American
Broadcasting Education Foundation, 15 FCC Rcd 8630 (Enf. Bur.
2000) (assessing a $7,000 forfeiture for violation of the main
studio rule).
32 Arnold, 16 FCC Rcd at 13602; Rego, Inc., 16 FCC Rcd 16795,
16797 (Enf. Bur., 2001) (both assessing a $3,000 forfeiture for
violation of transmitter control requirements).
33 47 U.S.C. § 503(b).
34 47 C.F.R. § 1.80.
35 See 47 C.F.R. § 1.1914.