Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Notice of Apparent Liability for Forfeiture ) ) UNIVERSITY HOSPITAL, INC. ) File No. 920EF0029 ) Licensee of Industrial/Business Station ) WPIM566, Cincinnati, OH ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 13, 1999 Released: May 14, 1999 By the 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, ("Act") and Section 1.80 of the Commission's Rules, against University Hospital, Inc. ("University"), licensee of Industrial/Business Station WPIM566, Cincinnati, Ohio. For the reasons that follow, we find that University operated radio transmitting apparatus without authorization from the Commission and acquired control of Station WPIM566 without the Commission's consent, in apparent violation of Sections 301 and 310(d) of the Communications Act of 1934, as amended, respectively. We conclude that University is apparently liable for a forfeiture in the amount of $18,000. II. Background 2. University initially held a license for Industrial/Business Station WNSS855 (929.5375 MHz) in Cincinnati, Ohio. University used this station to page its doctors. In 1996, University entered into an agreement with two paging companies, MAP Paging, Inc. ("MAP Paging"), then- licensee of Station WPIM566 (929.0125 MHz), and MobileMedia Paging, Inc. ("MobileMedia"). The agreement contemplated, among other things, that University would divest itself of its license for Station WNSS855 and acquire, via assignment of license, the authorization for Station WPIM566. According to University, MobileMedia was to prepare and file the application for Commission consent to the assignment of license of Station WPIM566 from MAP Paging to University. 3. University constructed six new sites in August 1996 and then commenced paging operations without authority on the frequency 929.0125 MHz from these six sites using the call sign WPIM566. University asserts that it believed at the time that the assignment application had been properly filed and its operation on 929.0125 MHz was permissible under Section 90.159(c) of the Commission's Rules. In fact, no assignment application had been filed, and University had no authority to operate even on a temporary basis on the frequency 929.0125 MHz. 4. Nearly two years later, University discovered that it did not have authority to operate on the frequency 929.0125 MHz at the six new sites, and, on July 14, 1998, University voluntarily brought the matter to the Commission's attention. On August 3, 1998, University filed applications for the assignment of the license for station WPIM566 and for special temporary authority (STA) to operate at the six new sites. 5. The Commission granted an STA to University on August 27, 1998. Thereafter, on November 16, 1998, the Commission granted University's assignment for consent to the assignment of license of Station WPIM566. III. Discussion 6. 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. Section 310(d) of the Act provides in pertinent part: No . . . station license . . . shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly . . . to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience and necessity will be served thereby. 7. The Commission's policy of imposing monetary forfeitures for violation of Sections 301 and 310(d) of the Act 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. 8. University concedes that it did not receive Commission approval before it constructed and operated six paging facilities in the Cincinnati, Ohio, area. Upon realizing that it lacked the required authorization, University notified the Commission and soon thereafter filed the appropriate applications. University claims that it believed an assignment application had been filed and that it was authorized to operate pursuant to Section 90.159(c) of the Commission's Rules under a conditional permit. This explanation, however, does not excuse University's violations. University did not have an assignment application on file and, therefore, did not have a conditional permit. University had an affirmative duty to ascertain, before beginning operation, whether its application had been filed and whether it possessed authority to operate a station. 9. The guidelines contained in the Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, specify base forfeiture amounts of $10,000 for "construction and/or operation without an instrument of authorization for the service" and $8,000 for "unauthorized substantial transfer of control." 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, University's voluntary disclosure of its violations to the Commission and its use of the frequency exclusively for vital medical purposes, we believe it is appropriate to reduce the amount of University's proposed forfeiture to $3,000 per site for the violations at each of University's six transmission sites, for a total forfeiture of $18,000. IV. Ordering Clauses 10. ACCORDINGLY, pursuant to Section 503(b) of the Communications act of 1934, as amended, and Section 1.80 of the Commission's Rules, University is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of eighteen thousand dollars ($18,000) for repeatedly violating Sections 301 and 310(d) of the Communications Act of 1934, as amended. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty days of the release of this Notice, University SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail, Return Receipt Requested, to University Hospital, Inc., 234 Goodman Street, Cincinnati, Ohio 45267, Attention: Clinical Engineering Division, and to University's counsel, Todd Collis, Esq., Crabbe, Brown, Jones, Potts & Schmidt, 500 Front Street, Suite 1200, Columbus, Ohio, 43215. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau