******************************************************** 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 ) ) Notice of Apparent Liability for Forfeiture of) ) PNI SPECTRUM, LLC ) ) Licensee of Station KNKG726 ) Daytona Beach, Ferndale, Haines City, Tampa,) Punta Gorda, Lakeland, Ruskin, Pinellas Park,) Venice, Winterhaven and Sarasota, Florida) File No. 820EF0021 ) Licensee of Station KNLW201 ) Barberville, Florida ) ) Licensee of Station KNLW202 ) Umatilla, Florida ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: October 19, 1998 Released: October 20, 1998 By the Acting Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. This is a Notice of Apparent Liability for Forfeiture, pursuant to Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, against PNI Spectrum, LLC ("PNI"), licensee of the following stations in Florida: (1) Station KNKG726, in Daytona Beach, Ferndale, Haines City, Tampa, Punta Gorda, Lakeland, Ruskin, Pinellas Park, Venice, Winterhaven and Sarasota; (2) Station KNLW201, in Barberville; and (3) Station KNLW202, in Umatilla. For the reasons that follow, we find that PNI failed to obtain authority from the Commission to construct and operate Stations KNKG726, KNLW201, and KNLW202 in the above thirteen locations, in apparent violation of Sections 301 of the Act, and 22.3 of the Commission's Rules. We conclude that PNI is apparently liable for a forfeiture in the amount of $78,000. II. Background 2. PNI, a subsidiary of Preferred Networks, Inc. ("Preferred"), is authorized to operate on frequency 931.2625 MHz under call sign KNKG726 in the Orlando, Florida area. To expand its service, on February 7, 1996, Preferred filed three FCC Forms 600 with the Commission to construct and operate Station KNKG726 at three additional locations in Florida -- Winter Haven, Pinellas Park and Haines City. On June 10, 1996, Preferred filed three more FCC Forms 600 to construct and operate Station KNKG726 at Daytona Beach, Ferndale, and Lakeland. On July 15, 1996, Preferred filed two additional FCC Forms 600 to construct and operate Station KNLW201 in Barberville, Florida, and Station KNLW202, in Umatilla, Florida. All eight locations for Station KNKG726 were to operate on the frequency 931.2625 MHz. 3. In September, 1996, Preferred filed a pro forma assignment application, requesting assignment of its Part 22 licenses and the above referenced pending applications, from Preferred to PNI. On October 18, 1996, the Commission granted the pro forma assignment application. According to PNI, when PNI received the approval of the pro forma assignment, it mistakenly believed that the Commission had also granted authorization of the pending applications. PNI then constructed and began operation at these eight expanded sites. Between January and May 1997, PNI constructed and began operation at an additional five facilities as fill-ins. On February 12, 1998, during a routine review of its authorizations, PNI discovered that it did not have Commission authority to operate at the thirteen locations noted above. It ceased operations at these thirteen locations on that day. III. Discussion 4. Section 301 of the Communications Act provides in relevant part: No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act. 47 U.S.C.  301. Similarly, Section 22.3 of the Commission's rules states: Stations in the Public Mobile Services must be used and operated only in accordance with the rules in this part and with a valid authorization granted by the FCC under the provisions of this part. 47 C.F.R.  22.3. 5. The Commission's policy of imposing monetary forfeitures for violation of Section 301 of the Act and Section 22.3 of the Commission's rules is well established. Each day of a continuing violation is considered a separate violation for purposes of computing a forfeiture under Section 503(b)(1) of the Act. 6. PNI concedes that it did not receive Commission approval before it constructed and operated thirteen paging facilities in central Florida. When PNI realized its apparent unauthorized construction and operation on February 12, 1998, it immediately ceased operations at those thirteen facilities and notified the Commission on March 2, 1998, of its actions. 7. The guidelines contained in the Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, specify a base forfeiture amount of $10,000 for "construction and/or operation without an instrument of authorization for the service." The guidelines, however, permit the Commission to issue a higher or lower forfeiture than provided in the guidelines. Section 503 of the Act requires the Commission to consider "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." In this case, taking into consideration all of the factors required by Section 503(b)(2)(D) of the Act, including, but not limited to, the fact that PNI ceased operations immediately upon realizing its error and PNI's voluntary disclosure of its violations to the Commission, we believe it is appropriate to reduce the amount of PNI's proposed forfeiture to $6,000 a violation for each of the thirteen violations, or a total forfeiture of $78,000. IV. Conclusion and Ordering Clauses 8. ACCORDINGLY IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b) and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, PNI Spectrum, LLC, is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seventy-eight thousand dollars ($78,000) for willfully and repeatedly violating 47 U.S.C.  301 of the Act and Section 22.3 of the Commission's Rules. 9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, that within thirty days of the release of this Notice, PNI SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 10. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to PNI, in care of Elizabeth Sachs, counsel to PNI at Lukas, Nace, Gutierrez & Sachs at 1111 19th Street, N.W., Suite 1200, Washington, D C. 20036. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Acting Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau