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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Rainbow Honolulu ) File Number: EB-03-HL-072
Licensee of Station WPKK857 ) NAL/Acct. No. 200432860001
Honolulu, Hawaii ) FRN 0006081673
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 2, 2004
By the Enforcement Bureau, Honolulu Resident Agent Office:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Rainbow Honolulu, licensee of radio station WPKK857 in
Honolulu, Hawaii, has apparently repeatedly violated Section 1.903(a)
of the Federal Communications Commission's ("FCC") Rules by operating
on an unauthorized frequency and operating at an unauthorized
location.1 We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (``Act''),2 that Rainbow
Honolulu is apparently liable for a forfeiture in the amount eight
thousand dollars ($8,000).
2. On August 13, 2003, the Honolulu Resident Agent Office
received a complaint alleging interference to licensed land mobile
radio station communications on 461.200 MHz. The complainant stated
that unidentified foreign language communications had disrupted their
operations since February 2003. Agents from the Honolulu Resident
Agent Office monitored unidentified Vietnamese language communications
on 461.200 MHz between August 13, 2003, and August 22, 2003, at various
times. On August 18, 2003, agents from the Honolulu Resident Agent
Office employed mobile direction finding techniques to positively
determine that the source of the transmissions was a transmitter
installed at Iolani Court Plaza, 2499 Kapiolani Blvd, Honolulu. The
agents contacted Delta Communications (``Delta''), a radio service
company, who confirmed that their customer, Rainbow Honolulu, was
operating on 461.200 MHz, utilizing a transmitter installed at Iolani
Court Plaza. Delta further stated that Rainbow Honolulu is the
licensee of radio station WPKK857. On August 22, 2003, the Honolulu
Resident agent again determined that Rainbow was operating without
authority on the frequency 461.200 MHz and from the unauthorized
location at Iolani Court Plaza.
3. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the terms
and conditions of any license, or willfully or repeatedly fails to
comply with any of the provisions of the Act or of any rule, regulation
or order issued by the Commission thereunder, shall be liable for a
forfeiture penalty.3 The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions are
committed knowingly.4 The term "repeated" means the commission or
omission of such act more than once or for more than one day.5
4. Section 1.903(a) of the Rules states ``Stations in the
Wireless Radio Services must be used and operated only in accordance
with the rules applicable to their particular service as set forth in
this title and with a valid authorization granted by the Commission
under the provisions of this part...'' Radio station license WPKK857,
issued to Rainbow Honolulu on January 19, 2002, authorizes operation on
the frequencies 464.650 and 468.650 MHz with a transmitter location
specified as 1600 Ala Moana Blvd., Honolulu. Rainbow Honolulu does not
hold any authorization to operate on 461.200 MHz, and is not authorized
to operate a transmitter at Iolani Court Plaza, 2499 Kapiolani Blvd.,
5. Based on the evidence before us, we find that Rainbow
Honolulu repeatedly violated Section 1.903(a) of the Rules by operating
on an unauthorized frequency and operating at an unauthorized location.
Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
(``Forfeiture Policy Statement'')6, and Section 1.80 of the
Commission's Rules,7 the base forfeiture amount for operating on an
unauthorized frequency is $4,000 and for operating at an unauthorized
location is $4,000. Accordingly, the total base forfeiture in this
instance is $8,000. 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 Act8, which includes the nature, circumstances,
extent, and gravity of the violation(s), 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.
Applying the Forfeiture Policy Statement and the statutory factors to
the instant case, an $8,000 forfeiture is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections 0.111,
0.311 and 1.80 of the Commission's Rules, Rainbow Honolulu is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section 1.903(a) of
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Rainbow Honolulu SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
8. 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 must include the NAL/Acct. No. and FRN
referenced in the caption.
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th Street SW,
Washington, D.C. 20554, Attn: Enforcement Bureau - Spectrum Enforcement
Division and must include the NAL/Acct. No. referenced in the caption.
10. 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 submitted.
11. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
12. 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 Spectrum Enforcement
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.
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9837 2260,
Return Receipt Requested, to Rainbow Honolulu, 308 Ainakea Way Apt 035,
Honolulu, Hawaii 96815.
FEDERAL COMMUNICATIONS COMMISSION
John R. Raymond
Resident Agent, Honolulu Office
Enclosure: Attachment A
1 47 C.F.R § 1.903(a).
2 47 U.C.S. § 503(b).
3 47 U.S.C. § 503(b).
4 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 or any rule or regulation
of the Commission authorized by this Act...." ...." See Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under Section
503(b) of the Act, provides that "[t]he 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."
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 C.F.R. § 1.80(b)(4).
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).
10 See 47 C.F.R. § 1.1914.