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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ESI Companies Inc. ) File Number EB-02-NF-109
1877 Vanderhorn Drive ) NAL/Acct. No. 200332640003
Memphis, Tennessee 38134 ) FRN 4245429
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 4, 2003
By the Enforcement Bureau, Norfolk Office:
1.In this Notice of Apparent Liability for Forfeiture
(?NAL?), we find ESI Companies Inc. (?ESI?), apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended (?Act?).1 Specifically, we
find ESI apparently liable for the operation of a radio station
on the frequency of 156.8050 MHz without Commission
2.On August 14, 2002, the FCC, Enforcement Bureau, Norfolk
Office (?Norfolk Office?) received a complaint about transmissions
that were hampering the U.S. Coast Guard Auxiliary's ability to
monitor for distress calls from boaters on the marine safety
channel at 156.8000 MHz. The complainant said that transmissions
emanated from an area south of Taylorsville, North Carolina, on
the frequency of 156.8050 MHz. This frequency is in a band of
frequencies allocated exclusively for maritime use. The
complainant also said that the interfering transmissions were
construction related and that the FCC did not license any station
in the area for use of 156.8050 MHz. The complainant also sent
the Norfolk Office a detailed log of transmissions. That log
mentioned the name ?Chris Thompson? during transmissions noted on
July 24, 2002. FCC license databases had no record of a license
issued for the use of 156.8050 MHz near Taylorsville, North
3.On August 22, 2002, an agent from the Norfolk Office
monitored the frequency 156.8050 MHz in the Taylorsville, North
Carolina area. The agent observed communications on that
frequency related to construction activities, and also heard the
name ?Chris? among others. Using direction finding equipment and
investigative techniques, he determined that these transmissions
emanated from a construction site located off of Old Land Fill
Road (SR 1608) south of Taylorsville, North Carolina. The agent
conducted an inspection and interviewed ESI's construction
superintendant. The superintendant stated that ESI employees used
a base station radio and six hand-held radios as part of its
construction business at the site; and that Chris Thompson was an
ESI employee. The agent made frequency measurements of the base
station and noted that it was tuned to 156.8050 MHz. ESI holds
licenses for business radio stations, but it is not authorized to
transmit on 156.8050 MHz or any marine frequency.
4.On October 21, 2002, in response to questions from the
Norfolk agent, ESI wrote that it used the wrong frequency in
Taylorsville, North Carolina and at possible other locations
across the country, but that it had corrected the violations.
5.Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license. On July 24, 2002, and on August 22, 2002, ESI operated
radio-transmitting equipment on the frequency of 156.8050 MHz
without benefit of the required Commission authorization.
6.Based on the evidence before us, we find ESI willfully2
and repeatedly3 violated Section 301 of the Act by operating
radio transmission apparatus without a license.
7.Pursuant to Section 1.80(b)(4) of the Rules,4 the base
forfeiture amount for operating a station without a license is
$10,000. In assessing the 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.5 In doing so, we note that ESI previously operated a
station without a license on the frequency of 156.800 MHz near
the East Mesa Detention Facility, San Diego, California. ESI's
unlicensed operation occurred on July 2, 1999. On July 14, 1999,
the FCC San Diego Office issued ESI a warning about unlicensed
station operation. Considering the entire record and applying
the factors listed above, this case warrants a $10,000
IV. ORDERING CLAUSES
8.Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 ESI is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 301 of the Act by
operating radio transmission apparatus without a license.
9.IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
ESI SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.8
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement
Bureau-Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
12. 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 petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
13. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to ESI Companies Inc., 1877 Vanderhorn Drive, Memphis, TN, 38134.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent, Norfolk Office,
AttachmentESI Companies Inc
1877 Vanderhorn Drive
Memphis TN 38134
ESI Companies Inc
1877 Vanderhorn Drive
Memphis TN 38134
1 § 47 U.S.C. § 301.
2 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',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .? See Southern California Broadcasting Co., 6 FCC
Rcd 4387-88 (1991).
3 The term ?repeated,? when used with reference to the commission
or omission of any act, ?means the commission or omission of such
act more than once or, if such commission or omission is
continuous, for more than one day.? 47 U.S.C. § 312(f)(2).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.