*Pages 1--7 from  Microsoft Word - 45256.doc*
 Federal  Communications  Commission 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Cumulus  Licensing  LLC 
 Licensee  of  FM  Stations 
 KEKB(  FM)  Fruita,  Colorado 
 Facility  ID  #  30431 
 KMXY(  FM)  Grand  Junction,  Colorado 
 Facility  ID  #  5550 
 KBKL(  FM)  Grand  Junction,  Colorado 
 Facility  ID  #  30430 

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 File  No.  EB-  03-  DV-  264 
 NAL/  Acct.  No.  200532800001 
 FRN  0002834810 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Released:  January  6,  2005 
 By  the  District  Director,  Denver  District  Office,  Western  Region,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that  Cumulus  Licensing  LLC  (  Cumulus),  licensee  of  KEKB(  FM),  99.9  MHz,  Fruita,  Colorado,  KBKL(  FM),  107.9 
 MHz,  Grand  Junction  Colorado,  and  KMXY(  FM),  104.  3  MHz,  Grand  Junction,  Colorado,  apparently  willfully  violated  Section  1.1310  of  the  Commissions  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  Cumulus  is  apparently  liable  for  forfeiture  in  the  amount  of  ten  thousand  dollars  ($  10,000). 

 II.  BACKGROUND 
 2.  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 

 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). 
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 turn  off  the  transmitter  on  the  tower.  The  tower  climber  proceeded  back  up  the  tower.  At  that  time  his  personal  RFR  monitor  was  indicating  only  a  minimal  RFR  reading  which  signaled  to  the  tower  climber 
 that  the  station  had  been  taken  off  the  air.  The  tower  climber  stated  that  he  then  turned  off  his  personal  RFR  monitor  because  the  Cumulus  engineer  had  told  him  that  the  station  would  be  kept  off  the  air  until 
 he  finished  his  work.  The  tower  climber  also  removed  the  protective  suit  hood  and  proceeded  with  the  maintenance  work. 

 5.  Within  forty  minutes  of  resuming  his  work,  the  tower  climber  stated  that  he  felt  a  burning  sensation  on  his  lower  legs.  About  three  to  four  minutes  later,  the  tower  climber  stated  that  he  saw  smoke 
 coming  from  the  bottom  of  his  suit.  According  to  information  received  from  the  manufacturer  of  the  suit  worn  by  the  tower  climber,  the  suit  is  rated  for  use  up  to  fifteen  to  twenty  times  the  occupational  RFR 
 MPE  limit.  10  The  tower  climber  stated  that  he  attempted  to  contact  the  Cumulus  engineer  but  was  unsuccessful.  The  tower  climber  then  began  to  climb  approximately  forty  feet  down  the  tower,  to  what  he 
 thought  was  a  safe  place  on  the  tower,  indicating  that  it  took  him  about  one  to  two  minutes  to  make  that  climb. 

 6.  On  February  4,  2004,  the  Denver  Field  Office  sent  a  Letter  of  Inquiry  to  Cumulus  asking  for  more  information  concerning  the  events  of  June  5,  2003.  11  Cumulus  responded  to  the  LOI  on  March  5, 
 2004,  12  and  supplemented  its  Response  on  April  8,  2004.  13  In  its  Response,  Cumulus  stated  that  when  the  tower  climber  arrived  to  fix  the  transmission  line  leak,  the  Cumulus  engineers  were  told  that  the  tower 
 climber  was  in  a  hurry.  14  One  engineer  initially  attempted  to  reduce  power  for  each  of  the  three  Cumulus  stations  on  the  tower  (KEKB(  FM),  KBKL(  FM)  and  KMXY(  FM))  as  much  as  possible.  15  The  engineer 
 stated  that  he  reduced  the  stations  power  to  ten  to  twelve  percent  of  full  power  and  the  tower  climber  began  his  climb.  When  the  tower  climber  notified  the  engineer  that  his  personal  RFR  meter  was 
 registering  levels  in  excess  of  safety  standards,  the  engineer  powered  down  the  transmitters.  16 
 7.  Once  the  transmitters  were  turned  off,  the  tower  climber  began  his  climb  again.  According  to  the  Cumulus  engineer,  at  one  point  the  tower  climber  yelled  down  from  the  tower  that  there 

 was  a  problem  with  the  radiation.  The  engineer  immediately  ran  back  to  the  transmitter  building  and  discovered  that  the  KBKL  and  KMXY  transmitters  were  on.  17  The  engineer  indicated  that  the  main 

 10  The  suit  was  made  by  Euclid  Garment  Manufacturing  Company,  http://  euclidgarment.  com/  KWBrochure.  pdf. 
 When  the  hood  is  removed  in  RFR  environments  where  transmitters  operate  in  frequency  ranges  below  500  MHz,  the  suit  is  rated  for  use  in  up  to  fifteen  times  the  occupational  RFR  MPE  limit. 

 11  February  4,  2004  Letter  of  Inquiry  from  Nikki  P.  Shears,  District  Director,  Denver  Field  Office  to  Cumulus 
 Licensing  Corporation  (  LOI). 
 12  March  5,  2004  letter  from  Mark  N.  Lipp,  Vinson  &  Elkins  to  Nikki  P.  Shears,  Federal  Communications 
 Commission  (  Response). 
 13  April  8,  2004  letter  from  Mark  N.  Lipp,  Vinson  &  Elkins  to  Nikki  P.  Shears,  Federal  Communications 
 Commission  (  Supplement). 
 14  Response  at  Exhibit  4,  Exhibit  5. 

 15  Response  at  Exhibit  5.  According  to  Cumulus,  KEKB(  FM),  KBKL(  FM)  and  KMXY(  FM)  are  the  only  stations  on 
 the  KEKB  tower.  Response  at  3. 
 16  Response  at  Exhibit  5. 

 17  Response  at  Exhibit  5. 
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 breaker  for  the  transmitters  was  on  and  he  turned  it  off.  18  The  engineer  acknowledged  that  due  to,  among  other  things  the  sense  of  urgency  on  the  part  of  the  tower  crew,  [he]  failed  to  explicitly  follow  the 
 procedures  and  [  ]  did  not  notify  the  appropriate  persons  who  had  access  to  the  transmitters  on  the  KEKB  tower.  19 

 8.  Cumulus  further  stated  in  response  to  the  LOI  that  the  events  surrounding  the  incident  on  June  5,  2003,  were  isolated,  that  Cumulus  takes  RFR  safety  seriously  and  that  it  is  taking  the  necessary 
 steps  to  prevent  any  similar  incident  from  ever  happening  again.  20 
 III.  DISCUSSION 
 9.  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.  21 
 10.  Section  1.1310  of  the  Rules  requires  licensees  to  comply  with  RFR  exposure  limits.  22  Table  1  in  Section  1.1310  of  the  Rules  provides  that  the  occupational  RFR  maximum  permissible 

 exposure  limit  for  a  station  operating  in  the  frequency  range  of  30  MHz  to  300  MHz  is  1.0  mW/  cm  2  .  On  June  5,  2003,  a  tower  climber  engaged  by  Cumulus  to  perform  maintenance  work  on  the  KEKB  tower 
 was  apparently  exposed  to  levels  of  RFR  that  far  exceed  the  MPE  limits  for  occupational  exposure.  The  tower  climber  has  stated  that  he  was  working  on  the  KEKB  tower,  at  a  height  of  approximately  200  feet, 
 which  apparently  placed  him  in  close  proximity  to  the  diplexed  KBKL(  FM)/  KMXY(  FM)  antenna.  Cumulus  engineers  acknowledge  that  despite  the  decision  to  turn  off  all  three  of  the  transmitters  on  the 
 tower,  once  the  climber  ascended  the  tower  and  began  work,  a  Cumulus  engineer  discovered  that  the  KBKL  and  KMXY  transmitters  were  on.  23  The  engineer  acknowledged  that  due  to,  among  other  things, 
 the  sense  of  urgency  on  the  part  of  the  tower  crew,  [he]  failed  to  explicitly  follow  the  procedures  and  [  ]  did  not  notify  the  appropriate  persons  who  had  access  to  the  transmitters  on  the  KEKB  tower.  24 

 18  Response  at  Exhibit  4,  Exhibit  5. 
 19  Response  at  Exhibit  5.  The  Program  Director  at  KBKL  stated  that  on  the  morning  of  June  5,  2003  he  received 
 calls  from  listeners  complaining  that  about  the  low  quality  of  the  KBKL(  FM)  signal.  The  Program  Director  called  the  transmitter  site  and  queried  the  system  which  indicated  that  the  main  transmitters  were  not  at  full  power  for 

 KBKL(  FM),  KMXY(  FM)  and,  he  believed,  KEKB(  FM).  He  then  reset  the  KBKL  transmitter  and  it  began  to  power  up,  but  when  [he]  rechecked  it  after  a  few  minutes  it  was  off.  He  stated  that  he  was  unable  to  reset  the 
 KMXY(  FM)  transmitter.  He  attempted  to  contact  the  chief  engineer  who  did  not  answer  his  phone.  After  a  few  more  minutes,  the  Program  Director  called  the  transmitter  site  again,  queried  the  system,  found  that  [  a]  ccording  to 
 the  system,  all  of  the  stations  were  operating  at  normal  power.  Response  at  Exhibit  6. 
 20  Response  at  2  and  4;  Supplement  at  1.  Cumulus  also  submitted  an  RFR  and  Environmental  Assessment  Study  for 
 ground  level  RFR  exposure  as  Exhibit  1  to  the  Supplement. 
 21  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,    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). 

 22  47  C.  F.  R.    1.1310. 
 23  Response  at  Exhibit  5. 

 24  Response  at  Exhibit  5. 
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 According  to  the  tower  climber,  he  had  been  on  the  tower  for  approximately  forty  minutes  when  he  felt  a  burning  sensation  on  his  lower  legs.  A  few  minutes  later,  the  tower  climber  stated  that  he  saw  smoke 
 coming  from  the  bottom  of  his  suit.  The  tower  climber  immediately  began  to  climb  approximately  forty  feet  down  the  tower. 

 11.  Agents  from  the  Denver  Field  Office,  in  consultation  with  the  Commissions  Office  of  Engineering  and  Technology  (  OET),  performed  calculations  to  determine  what  level  of  RFR  the  tower 
 climber  may  have  been  exposed  to  on  June  5,  2003.  The  occupational  RFR  MPE  limit  for  facilities,  operations  or  transmitters,  such  as  FM  transmitters,  in  the  30  to  300  MHz  range  is  1.0  mW/  cm  2  .  25 
 Assuming,  as  the  Cumulus  engineer  states,  that  both  KBKL(  FM)  and  KMXY(  FM)  came  back  on  at  the  same  time,  the  tower  climber  could  have  been  exposed  to  levels  of  RFR  of  184  mW/  cm  2  which  is 
 18,400%  of  the  occupational  RFR  MPE  limit.  26  If  only  one  of  the  stations  had  come  back  on,  the  tower  climber  could  have  been  exposed  to  levels  of  92  mW/  cm  2  which  is  9,200%  of  the  occupational  RFR  MPE 
 limit.  27  Even  taking  into  account  the  fifteen-  fold  safety  factor  of  the  tower  climbers  protective  suit,  the  tower  climber  still  could  have  been  exposed  to  RFR  above  the  occupational  MPE  limits.  Considering 
 Cumulus  acknowledgement  that  it  failed  to  keep  its  transmitters  from  coming  back  on  while  the  tower  climber  was  on  the  tower,  and  taking  into  account  the  calculated  RFR  levels  given  off  by  the  KBKL(  FM)/ 
 KMXY(  FM)  diplexed  antenna,  it  appears  that  Cumulus  exposed  the  tower  climber  to  levels  of  RFR  greatly  exceeding  the  occupational  MPE  limits. 

 12.  Cumulus,  by  its  employees,  was  responsible  for  and  appropriately  powered  down  the  transmitters  on  the  Cumulus  tower  when  the  tower  climber  stated  that  his  personal  RFR  meter  was 
 reading  RFR  limits  above  the  occupational  MPE  limit,  which  indicates  Cumulus  was  aware  of  the  potential  of  RFR  exposure  to  the  tower  climber.  Cumulus,  by  its  employees,  was  also  responsible  for 
 powering  on  one  or  more  of  the  transmitters  on  the  tower  while  the  climber  was  performing  maintenance  on  the  tower.  The  powering  on  of  one  or  more  of  the  transmitters  without  warning  to  the  tower  climber 
 while  the  tower  climber  was  in  the  proximity  of  the  antennas  resulted  in  Cumulus  apparently  exposing  the  tower  climber  to  levels  of  RFR  exceeding  the  occupational/  controlled  MPE  limit.  Based  on  the  evidence 
 before  us,  we  find  that  the  Cumulus  apparently  willfully  violated  Section  1.1310  of  the  Rules  on  June  5,  2003,  by  exposing  the  tower  climber  to  levels  of  RFR  exceeding  the  occupational/  controlled  MPE  limit 
 permitted  by  the  Commission. 
 13.  The  Commissions  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  in  Section  1.1310.  29  However, 

 25  Table  1  of  Section  1.  1310  specifies  the  applicable  MPE  limits  in  terms  of  power  density  (mW/  cm  2  )  for  FM 
 transmitters. 
 26  This  calculated  RFR  level  assumes  operation  by  the  diplexed  stations  KBKL(  FM)  and  KMXY(  FM)  at  100% 
 power.  Each  station  is  licensed  to  broadcast  at  100  kW  effective  radiated  power.  There  is  no  indication  in  the  Cumulus  Response  or  Supplement  that  the  stations  came  back  on  the  air  at  anything  less  than  their  full  licensed 

 power. 
 27  This  calculated  RFR  level  assumes  operation  by  either  KBKL(  FM)  or  KMXY(  FM)  at  100%  power  only. 

 28  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). 
 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, 
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 we  previously  determined  that  an  appropriate  base  forfeiture  amount  for  violation  of  the  RFR  MPE  limits  is  $10,000,  noting  the  public  safety  nature  of  the  rules.  30  We  propose  the  $10,000  base  forfeiture  amount 
 for  Cumulus,  licensee  of  KEKB(  FM),  KBKL(  FM)  and  KMXY(  FM),  for  producing  power  density  levels  in  excess  of  the  occupational  levels  stated  in  section  1.1310  of  the  Rules  and  for  failing  to  take  measures 
 to  adequately  prevent  a  worker  from  accessing  areas  that  exceeded  the  RFR  exposure  limits. 
 14.  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.  31  We  believe  that  the 
 seriousness  of  the  safety  violation  warrants  the  proposed  forfeiture  amount  of  $10,000.  Accordingly,  applying  the  Forfeiture  Policy  Statement,  Section  1.80,  and  statutory  factors  to  the  instant  case,  we 
 conclude  that  Cumulus  is  apparently  liable  for  a  $10,000  forfeiture. 
 IV.  ORDERING  CLAUSES 
 15.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  Sections  0.111,  0.311,  and  1.80  of  the  Commissions  Rules,  Cumulus 
 Licensing,  LLC,  licensee  of  KEKB(  FM),  KBKL(  FM)  and  KMXY(  FM),  is  hereby  NOTIFIED  of  this  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  ten  thousand  dollars  ($  10,000)  for 
 violations  of  Section  1.1310  of  the  Rules.  32 
 16.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  1.80  of  the  Commissions  Rules,  within  thirty  days  of  the  release  date  of  this  Notice  of  Apparent  Liability  for  Forfeiture,  Cumulus 

 Licensing  LLC  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/  Acct.  No.  and 
 FRN  No.  referenced  above.  Payment  by  check  or  money  order  may  be  mailed  to  Forfeiture  Collection  Section,  Finance  Branch,  Federal  Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois 
 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. 
 18.  The  response,  if  any,  must  be  mailed  to  Federal  Communications  Commission,  Enforcement  Bureau,  Western  Region,  Denver  Field  Office,  215  S.  Wadsworth  Blvd.,  Suite  303, 

 Lakewood,  Colorado,  80226,  and  must  include  the  NAL/  Acct.  No.  referenced  in  the  caption. 
 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  petitioners 
 current  financial  status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by 
 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  A-  O  Broadcasting  Corporation,  17  FCC  Rcd  24184  (2002). 
 31  47  U.  S.  C.    503(  b)(  2)(  D). 
 32  47  C.  F.  R.    0.111,  0.311  1.  80  and  1.1310. 
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 reference  to  the  financial  documentation  submitted. 
 20.  Requests  for  payment  of  the  full  amount  of  this  Notice  of  Apparent  Liability  for  Forfeiture  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivable  Operations  Group, 

 445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  33 
 21.  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  Cumulus 

 Licensing  LLC,  3535  Piedmont  Road,  Building  14,  14  th  Floor,  Atlanta,  Georgia,  30305. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Nikki  P.  Shears  District  Director 
 Denver  District  Office  Western  Region 
 Enforcement  Bureau 

 33  See  47  C.  F.  R.    1.1914. 
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