Adopted: May 28, 2009 Released: June 3, 2009
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of twenty-five thousand dollars ($25,000) to Minority Business & Housing Development, Inc. (“MBHD”), licensee of FM radio station WYGG in Asbury Park, New Jersey, for willfully and repeatedly violating Section 1.1310 of the Commission’s Rules (“Rules), by failing to comply with radio frequency radiation (“RFR”) maximum permissible exposure (“MPE”) limits applicable to facilities, operations, or transmitters; 1 Section 73.1350(a) of the Rules, by operating with an excessive antenna height from an unauthorized location; 2 and Section 73.3527(a) of the Rules, by failing to maintain a public inspection.
After identifying the station’s location, the FCC agent then entered the building located at 601 Bangs Avenue and identified himself to the front desk clerk. The clerk indicated that he had a key to the roof and contacted the building manager, who escorted the agent to the roof. To access the roof, it was necessary to unlock a padlocked door that led into a poorly illuminated elevator equipment room, which was followed by an unlocked door leading outside to the lower level of the roof. The roof had an upper level, which could only be accessed by climbing a ladder mounted on the side wall. The agent observed WYGG’s transmitting antenna approximately 8 feet above the upper roof level mounted on a pole approximately 3 feet away from the top of the ladder. The agent also observed a set of cellular antennas mounted on the side wall around the edges of the upper roof, and a set of 8 thick cables laid across the upper roof within several feet of WYGG’s antenna. Using a personal RF safety monitor, the agent determined that there was an area near the top of the ladder leading to the upper roof that met or exceeded the general population RFR MPE limits. There were no warning signs or barriers on the rooftop to prevent access to the area in question. In response to questions, the building manager stated that workers routinely gain access to the roof by obtaining a key from the front desk or the office on the 11th floor and that workers recently accessed the roof to work on the cellular equipment. She also stated that she was unaware of any RFR hazards on the roof. the agents observed two small, inconspicuous signs near the unlocked door that led to the rooftop. One was a small RFR sign posted to the left of the door by a wireless service provider indicating that the RFR levels may exceed FCC Standards for general public exposure. The sign did not indicate which areas on the roof exceeded the public or general population limits. The second was a small white paper sign glued to the right of the access door advising of a “radio frequency hazard” and that “anyone who has to climb the ladder to the top out of this door please contact the radio station on 7th floor suite 705.” Two phone numbers for the station were listed on the sign. Neither warning sign was clearly visible because the elevator equipment room was not illuminated. The view of the small white sign to the right of the access door was blocked by a large piece of electrical equipment.
The agents then proceeded to the upper rooftop to conduct RFR measurements. There were still no warning signs or barriers on the rooftop to prevent access to hazardous areas. Using a calibrated RFR meter, the agents determined that the occupational and general population limits were exceeded in an area about 5 feet around WYGG’s antenna support pole. The agents made a total of 12 spatially averaged measurements one foot from WYGG’s antenna support pole at a single location where the highest RFR levels were detected. The measurements showed that the RFR level was 158% of RFR MPE occupational limit, and 790% of the general population RFR MPE limit, or 1.58 mW/cm2
7. Immediately after making the RFR measurements, an agent contacted the station manager at one of the numbers listed on the warning sign. The agent stated to the station manager that workers were about to go on the roof and asked the manager if there were any hazards for persons working on the upper level roof (note: without RF safety training). The manager indicated that there were no hazards on the roof but that the workers should not go too close to the antenna. The agent repeatedly informed the manager that men would be working near the antenna on the upper roof and asked if there would be a problem. The manager stated that the antenna has been up there for 5 or 6 years and that people had worked on the roof before and nothing happened. The agent called the manager back about 10 minutes later, explained that he was still concerned about RFR from the antenna, and asked if it would be possible to temporarily turn off the power to the station so that the men could work safely on the roof. The manager said that he would ask the station operators to turn off the station. A few minutes later, the manager called the agent back and said he was going to the station himself to turn off the station. Shortly thereafter, the manager called the agent again, stating that he was at the studio and was turning off the station for 30 minutes. The agent asked the manager if it would be safe for the men to go to the upper roof, and the manager said that it would. The agents then observed that the radio transmitter for station WYGG was still operating.
8. Several minutes later, the station manager came to the rooftop. When agents asked why the power to the station was not turned off after he agreed to do so, the manager explained that he thought that turning off the audio to the radio station was sufficient. The agents explained that the transmitter itself must be turned off in order to eliminate the RFR emanating from the antenna. After the WYGG transmitter was turned off, the agents conducted additional RFR measurements in the same location under WYGG’s antenna with the calibrated RFR meter. No RFR emissions were detected when station WYGG was off the air, which indicated that WYGG was responsible for 100% of the emissions measured earlier. Therefore, the RFR emissions from WYGG were 158% of RFR MPE occupational limit, and 790% of the general population RFR MPE limit, or 1.58 mW/cm2. The agents explained to the manager that the RFR levels due to WYGG’s transmission exceeded the occupational and general population MPE limits, creating an RFR hazard, and that the problem should be addressed as soon as possible. The agents also advised the manager that, in addition to the RFR violations, the station was still in violation for operating at an unauthorized location and height.
We (The FCC) find that MBHD’s request for a “significant reduction” in the forfeiture amount is without merit. First, we decline to reduce the forfeiture amount based on MBHD’s claim that it did not intend to violate the rules. The Commission has long held that violations resulting from inadvertent error or failure to become familiar with the FCC’s requirements are willful violations and that “willful” does not require a finding that the rule violation was intentional.20 Rather, the term “willful” means that the violator knew that it was taking (or not taking) the action in question, irrespective of any intent to violate the rules. In any event, because we find here that MBHD’s violations of Section 1.1310, Section 73.1350(a), and Section 73.3527(a) were repeated, we do not also need to make a determination that they were willful.21 We likewise decline to take into consideration the “ongoing efforts that WYGG has made to become FCC compliant.” The Commission has consistently held that a licensee is expected to correct errors when they are brought to the licensee’s attention and that such correction is not grounds for a downward adjustment in the forfeiture.22
18. In sum, we have examined MBHD’s response to the NAL pursuant to the statutory factors above, and in conjunction with the Forfeiture Policy Statement. As a result of our review, we conclude that MBHD willfully and repeatedly violated Section 1.1310, Section 73.1350(a), and Section 73.3527(a) of the Rules and that the $25,000 forfeiture proposed in the NAL is warranted.