Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Notice of Apparent Liability for Forfeiture of ) ) PEMBINA EMERGENCY SERVICES ) File No. 920EF0051 ) Former Licensee of Land Mobile Radio ) Service Station KNAK344, Pembina, ND ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: July 30, 1999 Released: August 2, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. In this Notice of Apparent Liability for Forfeiture, we find that Pembina Emergency Services ("Pembina"), former licensee of Special Emergency Radio Station KNAK344, Pembina, North Dakota, continued to operate Station KNAK344 for over twelve years without a valid license, in apparent willful and repeated violation of Section 301 of the Act, and former Section 90.113 of the Commission's Rules. We conclude that Pembina is apparently liable for a forfeiture in the amount of seven thousand dollars ($7,000). II. Background 2. Pembina was originally granted a license for Station KNAK344 on May 7, 1981 for emergency paging of its ambulance, fire and emergency facilities. On May 7, 1986, Pembina allowed its license for Station KNAK344 to lapse without filing an application for renewal. During the following twelve years, Pembina continued operating the station without a valid license. The license was purged from the Commission's database on February 28, 1987. 3. On November 17, 1998, Pembina voluntarily notified the Commission of its failure to timely seek renewal of its license. Pembina noted that it had continued to operate the station because the station serves as an emergency alert for "medical attention and fire department response." Pursuant to Section 90.145 of the Commission's Rules, Pembina filed a request for Special Temporary Authority (STA) to continue operating Station KNAK344. Pembina provided no explanation for its failure to file a timely renewal application. On November 18, 1998, the Commission staff granted Pembina's request for an STA. III. Discussion 4. Section 301 of the Act provides in pertinent 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." Similarly, Section 90.113 of the Commission's Rules provides in pertinent part that "No radio transmitter shall be operated . . . except under and in accordance with a proper authorization granted by the Commission." Section 503(b) of the Communications Act of 1934, as amended (the "Act") and Section 1.80 of the Commission's Rules further provide that a forfeiture penalty may be assessed against a person who is found to have willfully or repeatedly failed to comply with the Commission's rules. The Commission has held that an act or omission is "willful" if it is a conscious act or omission, whether or not there is any intent to violate the rule. 5. Based upon Pembina's submission, we find that Pembina operated Station KNAK344 without any valid authorization from May 7, 1986, when its license expired, to at least November 18, 1998, when the Commission staff granted Pembina's request for an STA. We further find that Pembina engaged in such unauthorized operation in apparent willful and repeated violation of Section 301 of the Act and Section 90.113 of the Commission's Rules. We note that Pembina voluntarily brought this matter to the Bureau's attention. 6. The Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, provides that cases arising from facts that occurred prior to the effective date of the Forfeiture Policy Statement shall be decided on a case-by-case basis. Since the violation in question began on May 7, 1986, we will determine the appropriate forfeiture using the case-by-case method that preceded the effective date of the Forfeiture Policy Statement. Section 503(b)(2)(D) of the Act requires that the Commission 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 such other matters as justice may require" when assessing a forfeiture. In Hospers Telephone Exchange, Inc., 10 FCC Rcd 12001 (Wireless Tel. Bur. 1995), we imposed a $7,000 forfeiture against a public land mobile licensee that operated with two expired licenses for four years. Similarly, in Curtain Call Communications of LaCrosse, 12 FCC Rcd 4977 (Wireless Tel. Bur. 1997), we found a paging licensee apparently liable for a $4,000 forfeiture for operating with an expired authorization for over seven years. 7. In the instant case, Pembina's apparent violation continued for a period of approximately twelve years. The duration of Pembina's violation is much longer than the periods of misconduct in the Hospers and Curtain Call cases. We note, however, that Pembina operated the station for emergency paging services. Taking into consideration all of the factors required by Section 503(b)(2)(D) of the Act, including, but not limited to, the extraordinary length of time during which the unauthorized operation took place, the nature of the station and licensee in question, and Pembina's voluntary disclosure of its apparent violation to the Commission, we believe that a forfeiture in the amount of $7,000 is appropriate in this case. IV. Conclusion and Ordering Clauses 8. Based on the foregoing, we find that Pembina operated the above referenced station after the expiration of its authorization, in apparent willful and repeated violation of Section 301 of the Act and Section 90.113 of the Commission's Rules for a period in excess of twelve years. We conclude that forfeiture in the amount of $7,000 is appropriate. 9. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission's Rules, Pembina Emergency Services is hereby NOTIFIED of this APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand dollars ($7,000) for willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended, and Section 90.113 of the Commission's Rules. 10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty days of the release of this Notice, Pembina Emergency Services SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to Pembina Emergency Services, City Hall, PO Box 411, Pembina, ND 58271. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau