******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Pronto Express Inc. )NAL/Acct. No. 215DS0012 Nogales, Arizona ) ) ORDER Adopted: August 11, 1997 Released: August 13, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1.In this Order, we address the Notice of Forfeiture (NOF) for $2,000 issued to Pronto Express Inc. on September 28, 1992, by the Compliance and Information Bureau, Federal Communications Commission. The forfeiture was issued under authority of Section 503(b) of the Communications Act of 1934, as amended (Act), 47 U.S.C. 503(b), for willfully violating Section 301 of the Act, 47 U.S.C. 301. The amount of the forfeiture was determined pursuant to the Commission's guidelines for assessing forfeitures that were in effect at that time. See Policy Statement of Assessing Forfeitures, 8 FCC Rcd 6215 (1993). In July 1994, the United States Court of Appeals for the D.C. Circuit vacated the forfeiture guidelines. United States Telephone Assn v. FCC, 28 F.3d 1232 (D.C. Cir 1994). On our own motion, pursuant to Section 504(b) of the Act, 47 U.S.C. 504(b) we have evaluated all of the circumstances in this case and conclude that a forfeiture in the amount of $2,000 is warranted. II. BACKGROUND 2.On December 4, 1991, at 11:00 a.m. MST, Pronto Express Inc. operated a radio station on 155.725 MHz. Pronto Express Inc. had no Commission authority for this operation. On September 10, 1992, the Compliance and Information Bureau's Douglas Field Office issued a Notice of Apparent Liability (NAL) to Pronto Express Inc. which proposed a monetary forfeiture in the amount of $8,000. Pronto Express Inc. responded to the NAL by letter dated September 21, 1992. Pronto Express Inc. did not deny the violation. Pronto Express Inc., however, requested mitigation of the forfeiture amount because its business operates on both sides of the United States-Mexican border and the Mexican government had issued a radio license for use in Nogales, Sonora, Mexico on 155.725 MHz. A copy of the Mexican radio station license was submitted with the letter. 3.On review of the information provided in response to the NAL, the Douglas Field Office concluded that Pronto Express Inc. had violated Section 301 of the Communications Act and that the violation was willful. The Douglas Field Office concurred, however, that Pronto Express Inc. had demonstrated mitigating circumstances and accordingly adjusted the forfeiture to $2,000. On September 28, 1992, the Douglas Field Office issued a NOF to Pronto Express Inc. for $2,000. III. DISCUSSION 4.As previously noted, the NOF followed the Commission's forfeiture guidelines vacated by the court in United States Telephone Assn v. FCC, 28 F.3d 1232 (D.C.Cir 1994). In light of the court's decision, we are assessing the forfeiture amount pursuant to the guidelines of Section 503 of the Act, 47 U.S.C. 503. In assessing forfeitures, Section 503 of the Act requires that the Commission take into account 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 such other matters as justice may require. 47 U.S.C. 503(b)(2)(D). 5.Pronto Express Inc. has not denied that the unlicensed broadcast operation occurred. Unlicensed operation is an egregious violation because of potential interference or, as in the instant case, actual interference to public safety frequencies. As the NAL indicated, Pronto Express Inc. was not licensed by the Commission to transmit on 155.725 MHz. This unauthorized transmission caused interference to Santa Cruz County Emergency Services and also to the Santa Cruz County Sheriff's radios operating on 155.715 MHz. In addition, the violation is willful because Pronto Express Inc. operated the radio without a license from the FCC. An intent to deliberately violate the Act is not a prerequisite to establishing a willful violation. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Accordingly, upon consideration of all factors in this case, and in light of Section 503 of the Act, we find that the forfeiture amount of $2,000 is warranted. IV. ORDERING CLAUSES 6.IT IS ORDERED, pursuant to Sections 503(b) and 504(b) of the Act, 47 U.S.C. 503(b), 504(b), that Pronto Express Inc. IS LIABLE FOR MONETARY FORFEITURE in the amount of $2,000 for willful violation of the above rules. The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Communications Act. 7.IT IS FURTHER ORDERED pursuant to Sections 1.80(f)(3) and (h) of the Commission's Rules, 46 C.F.R. 1.80(f)(3) and (h), that Pronto Express Inc. must pay the full amount of the monetary forfeiture amount of two thousand dollars ($2,000) within thirty (30) days of the date of release of this order. Forfeitures shall be paid by check, money order, or credit card drawn on a United States financial institution payable to the Federal Communications Commission. Forfeiture penalties not paid within 30 days may be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C. 504(a). Please place NAL/Acct. No. 215DS0012 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 8.Any application for review or petition for reconsideration of this decision may be filed within 30 days from the release date of this Order in accordance with Sections 1.115 and 1.106 of the Commission's Rules, 47 C.F.R. 1.115, 1.106, and mailed to: Federal Communications Commission Legal Services Group, Compliance Division, CIB Attention: Mail Stop Code 1500-E/MSL 1919 M Street, N.W. Washington, DC 20554 9.IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return receipt requested, to Pronto Express Inc. and to its counsel. FEDERAL COMMUNICATIONS COMMISSION Joseph P. Casey Acting Chief, Compliance and Information Bureau