**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-08-HL-0178      |
|                                  |   |                                 |
| Visionary Related Entertainment, | ) | NAL/Acct. No. 200932860001      |
| L.L.C.                           |   |                                 |
|                                  | ) | FRN: 0010123404                 |
| Licensee of FM Broadcast Station |   |                                 |
| KTBH-FM                          | ) |                                 |
|                                  |   |                                 |
| Kurtistown, Hawaii               | ) |                                 |
|                                  |   |                                 |
| Facility ID #164281              | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: December 23, 2008

By the Resident Agent, Honolulu Resident Agent Office, Western Region,
Enforcement Bureau:

# INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that Visionary Related Entertainment, L.L.C. ("Visionary"),
licensee of FM Broadcast station KTBH-FM, in Kurtistown, Hawaii,
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 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 Visionary is apparently liable for a forfeiture in
the amount of ten thousand dollars (\$10,000).

# BACKGROUND

# 2. The RFR Rules. Section 1.1310 of the Rules defines the 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.[^3] These MPE limits 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.[^4] 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. 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.[^5] Licensees can demonstrate compliance by restricting public access to areas where RFR exceeds the public MPE limits.[^6]  {#the-rfr-rules.-section-1.1310-of-the-rules-defines-the-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.-these-mpe-limits-include-limits-for-occupationalcontrolled-exposure-and-limits-for-general-populationuncontrolled-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.-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.-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.-licensees-can-demonstrate-compliance-by-restricting-public-access-to-areas-where-rfr-exceeds-the-public-mpe-limits. .unnumbered}

# 3. 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."[^7] Table 1 provides that the general population RFR maximum permissible exposure limit for a station operating in the frequency range of 30 MHz to 300 MHz is 0.200 mW/cm^2^.[^8] Broadcast stations that filed applications after October 15, 1997, for an initial construction permit, license, renewal or modification of an existing license were required to demonstrate compliance with the new RFR MPE limits, or to file an Environmental Assessment and undergo environmental review by Commission staff.[^9] In addition, all existing licensees were required to come into compliance with the new RFR MPE limits by September 1, 2000, or to file an Environmental Assessment.[^10] {#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.-table-1-provides-that-the-general-population-rfr-maximum-permissible-exposure-limit-for-a-station-operating-in-the-frequency-range-of-30-mhz-to-300-mhz-is-0.200-mwcm2.-broadcast-stations-that-filed-applications-after-october-15-1997-for-an-initial-construction-permit-license-renewal-or-modification-of-an-existing-license-were-required-to-demonstrate-compliance-with-the-new-rfr-mpe-limits-or-to-file-an-environmental-assessment-and-undergo-environmental-review-by-commission-staff.-in-addition-all-existing-licensees-were-required-to-come-into-compliance-with-the-new-rfr-mpe-limits-by-september-1-2000-or-to-file-an-environmental-assessment. .unnumbered}

4\. **KTBH-FM License Application.** In its license application for
KTBH-FM, Visionary included a *Special Operating Conditions Statement*
concerning the RFR levels at and around the KTBH-FM transmitter
site.[^11] In the *Special Operating Statement*, Visionary acknowledged
that at 50kW ERP, the KTBH-FM antenna will produce a calculated maximum
field intensity level of 165.49 microwatts per square centimeter
\[(0.16549 mW/cm^2^)\] at a distance of 12.5 meters \[41.25 feet\] from
the base of the tower.[^12] In its application Visionary states that
"this is just over 80% of the public limit, and complies with FCC and
ANSI regulations and limitations concerning RF exposure to the general
public."[^13]

5\. **The KTBH-FM Inspection**. The KTBH-FM transmitter site is located
in Hilo, Hawaii. KTBH-FM is licensed to operate at 50 kW ERP. The
KTBH-FM antenna system is a four bay Jampro JHHP-4, horizontally
polarized, and side mounted on an existing AM tower, utilized by the
co-located AM radio stations KHBC (1060 kHz) and KHLO (850 kHz). The
transmitter site is in a residential area at the northeast corner of
Auwae Road and Kahaopea Street. There is a residence on the adjacent lot
along Auwae Road, and a junkyard on the rear adjacent lot. The property
boundary is lined with light foliage and trees, and is not fenced. A
100-foot gravel and grass driveway off of Auwae Road allows unrestricted
site access to the property. The driveway leads up to the antenna
structure and several buildings located in a 70 foot by 80 foot area
enclosed within a secure chain link fence. The antenna structure is
located approximately in the middle of the 70 foot by 80 foot
rectangular fenced area. The antenna structures guy wires extend far
beyond the fence. The transmitter building is located just north of the
antenna structure inside the enclosed fencing. One RF radiation caution
sign is posted on the north side of the fence near the entry gate.

6\. On June 25, 2008, a Honolulu agent conducted an inspection at the
KTBH-FM transmitter site. The agent first employed a personal RF monitor
to identify and mark two large rectangular areas of potential high RFR
outside the fence. On the east side of the fence, the agent marked a
large rectangular area of concern that extended 10 feet out from the
fence and that ran along the entire 80 foot length of the fence. [^14]
On the west side of the fence, the agent marked another large
rectangular area of concern that extended 15 feet out from the fence and
that ran along the entire 80 foot length of the fence.[^15] In these two
rectangular areas of concern, the fence enclosing the transmitter site
is less than 30 feet from the tower. No RFR warning signs were posted on
the east or west facing fence and the one RF caution sign on the north
side of the fence was not visible from the areas of concern. The agent
marked four spots within the areas of concern outside the fence, ranging
from 40 feet to 70 feet from the antenna structure tower and from 5 to
10 feet outside the fence, to conduct detailed measurements utilizing a
calibrated RFR meter and probe and employing a spatial averaging
measurement technique where measurements in four quadrants are averaged
to give a representative reading for each location. Public RFR MPE
levels were exceeded throughout these two areas of concern of
approximately 800 and 1200 square feet, respectively, ranging from 0.28
mW/cm ^2^ to 0.46 mW/cm ^2^ (140 to 230% of the public MPE limits).

7.  On June 26, 2008, the Honolulu agent conducted a follow-up
    inspection at the KTBH-FM transmitter site with a contract engineer
    for co-located AM radio station KHBC. At the time of the inspection,
    the transmitter power output (TPO) was 12,200 watts. Using an
    antenna power gain of 4.2 as specified in the Jampro Antenna
    Specification Engineering Data, and a line loss of 0.214 dB, the
    station effective radiated power (ERP) was 48.77 kW, which is 97.5%
    of the licensee's authorized ERP. Again, the agent employed a
    personal RF monitor to identify the same two large rectangular areas
    of concern, along the eastern and western faces of the fence. The
    areas extended approximately 10 feet by 80 feet along the eastern
    face of the fence, and 15 feet by 80 feet along the western face of
    the fence.[^16] Measurements were again conducted at four locations
    within the two areas of concern, ranging from 40 to 70 feet from the
    tower, and from 5 to 10 feet outside the fence, using a calibrated
    RFR meter. The agents employed a spatial averaging measurement
    technique, where measurements in four quadrants are averaged to give
    a representative reading for each location. Again, public RFR MPE
    levels were exceeded in the areas of concern, ranging from 0.30
    mW/cm ^2^ to 0.49 mW/cm^2^ (150 to 245% of the public MPE limits).

8.  On-off tests were then conducted, which confirmed that only KTBH-FM
    contributed more than 5% of the measured RFR levels. Working with
    the contract engineer who gradually lowered the power of KTBH-FM,
    the agent conducted RFR measurement at various power levels and
    determined that at a 50% power level KTBH-FM would not produce RFR
    in excess of the public MPE limits in publically accessible areas.
    The contract engineer set the KTBH-FM transmitter at 50% power and
    notified KTBH-FM.

9.  On July 11, 2008, the KTBH-FM contract engineer advised the agent
    that he conducted RFR measurements using his own calibrated RFR
    meter and confirmed the non-compliant RFR levels in the same areas
    identified by the agent.

# DISCUSSION

##  10. 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 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. The term \"willful\" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.[^17] The term "repeated" means the commission or omission of such act more than once or for more than one day.[^18]  {#section-503b-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-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.-the-term-willful-as-used-in-section-503b-has-been-interpreted-to-mean-simply-that-the-acts-or-omissions-are-committed-knowingly.-the-term-repeated-means-the-commission-or-omission-of-such-act-more-than-once-or-for-more-than-one-day. .unnumbered}

11\. Section 1.1310 of the Rules requires licensees to comply with RFR
exposure limits.[^19] Table 1 in Section 1.1310 of the Rules provides
that the general population RFR maximum permissible exposure limit for a
station operating in the frequency range of 30 MHz to 300 MHz is 0.200
mW/cm^2^.

12\. Public access to the KTBH-FM transmitter site is unrestricted. The
general population or public exposure limits apply in situations where
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.[^20] Given the statements made by Visionary in its *Special
Operating Conditions Statement,* we find that Visionary was aware of the
RFR MPE limits for the general public in the areas of concern
surrounding the transmitter site. While it appears that Visionary
determined that calculated fields would comply with FCC and ANSI
regulations and limitations concerning RF exposure to the general
public, we find that no actual measurements were performed to confirm
compliance. We also find that Visionary did not restrict access to areas
where RFR exceeded the public MPE limits on June 25 and June 26, 2008.
Visionary bears the responsibility to restrict access to areas that
exceed the RFR limits or to modify the facility and operation so as to
bring the station's operation within the RFR exposure limits prior to
public or worker access to the impacted area.[^21] Based on these
findings, Visionary's violation is willful. The violation occurred on
more than one day, and is therefore repeated.

13\. Based on the evidence before us, we find that Visionary apparently
willfully and repeatedly violated Section 1.1310 of the Rules[^22] by
exceeding the public RFR MPE limits in an area accessible by the public
or by workers who were not fully aware of the potential for exposure,
and by failing to adequately take measures to prevent access to an area
that exceeded the RFR exposure limits.

14\. The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80(b) of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement")[^23] does not specify a base forfeiture
for violation of the RFR maximum permissible exposure limits in Section
1.1310.[^24] 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 RFR rules.[^25] In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such matters as
justice may require.[^26] Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we conclude
that Visionary is apparently liable for a \$10,000 forfeiture.

# ORDERING CLAUSES

15\. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
the Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission\'s Rules, Visionary Related
Entertainment, L.L.C. is hereby **NOTIFIED** of this **APPARENT
LIABILITY FOR A FORFEITURE** in the amount of ten thousand dollars
(\$10,000) for violations of Section 1.1310 of the Rules.[^27]

16\. **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, Visionary Related
Entertainment, L.L.C. **SHALL PAY** the full amount of the proposed
forfeiture or **SHALL FILE** a written statement seeking reduction or
cancellation of the proposed forfeiture.

17\. Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
Number referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank --
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted.  When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to:  Chief Financial
Officer \-- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C.  20554. [^28]  Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Visionary Related Entertainment,
L.L.C., shall also send electronic notification on the date said payment
is made to WR-Response@fcc.gov.

18\. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Honolulu Resident Agent
Office, P.O. Box 971030, Waipahu, HI 96797-1030 and must include the
NAL/Acct. No. referenced in the caption. An electronic copy shall be
sent to WR-Response@fcc.gov.

19\. 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.

20\. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Visionary Related Entertainment, L.L.C.

FEDERAL COMMUNICATIONS COMMISSION

Ryan Hagihara

Resident Agent

Honolulu Office

Western Region

Enforcement Bureau

[^1]: 47 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*"*).*

[^2]: 47 U.S.C. § 503(b).

[^3]: *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).

[^4]: 47 C.F.R. § 1.1310, Note 1 to Table 1.

[^5]: 47 C.F.R. § 1.1310, Note 2 to Table 1.

[^6]: *See, for example, OET Bulletin 65.*

[^7]: See 47 C.F.R. §§ 1.1307(b), 1.1307(b)(1), 1.1310.

[^8]: ^?^ 47 C.F.R. § 1.1310.

[^9]: ^?^ *Guidelines,* *Second Memorandum Opinion and Order and Notice
    of Proposed Rulemaking,* 12 FCC Rcd at 13538;

    47 C.F.R. § 1.1307(b).

[^10]: ^?^ *Guidelines,* *Second Memorandum Opinion and Order and Notice
    of Proposed Rulemaking,* 12 FCC Rcd at 13540; 47 C.F.R. §
    1.1307(b)(5). *See also, Public Notice,* Year 2000 Deadline for
    Compliance with Commission's Regulations Regarding Human Exposure to
    Radiofrequency Emissions (released Feb. 25, 2000); *Public Notice*,
    Erratum to February 25, 2000 Public Notice, 15 FCC Rcd 13600
    (released April 27, 2000); *Public Notice*, Reminder of September 1,
    2000, Deadline for Compliance with Regulations for Human Exposure to
    Radiofrequency Emissions, 15 FCC Rcd 18900 (released Aug. 24, 2000).

[^11]: File No. BLH-20080324AFT, Special Operating Conditions Statement
    ("*Special Operating Conditions Statement*").

[^12]: *Special Operating Conditions Statement* at 1.

[^13]: *Special Operating Conditions Statement* at 1 -- 2.

[^14]: The personal RF monitor LED lit continually throughout this area,
    and the unit emitted an audible warning, indicating the RFR in the
    area likely exceeded the public RFR MPE.

[^15]: The personal RF monitor LED lit continually throughout this area,
    and the unit emitted an audible warning, indicating the RFR in the
    area likely exceeded the public RFR MPE.

[^16]: The personal RF monitor LED lit continually throughout this area,
    and the unit emitted an audible warning, indicating the RFR in the
    area likely exceeded the public RFR MPE.

[^17]: 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).

[^18]: ^?^ Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
    also applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]he term
    \'repeated\', when used with reference to the commission or omission
    of any act, means the commission or omission of such act more than
    once or, if such commission or omission is continuous, for more than
    one day."

[^19]: 47 C.F.R. § 1.1310.

[^20]: 47 C.F.R. § 1.1310. *See Entravision Holdings, LLC*, 22 FCC Rcd
    21718 (EB 2007).

[^21]: 47 C.F.R. §§ 1.1307(b)(1), 1.1307(b)(5), 1.1310. Additional
    guidance is provided in OET Bulletin 65.

[^22]: 47 C.F.R. 1.1310

[^23]: ^?^ *Forfeiture 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).

[^24]: ^?^ 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.*

[^25]: *A-O Broadcasting Corporation*, 17 FCC Rcd 24184 (2002).

[^26]: 47 U.S.C. § 503(b)(2)(E).

[^27]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    1.1310.

[^28]: *See* 47 C.F.R. § 1.1914.