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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Prolink Inc. ) File Number: EB-04-LA-040
Licensee of Station WPYZ348 ) NAL/Acct. No. 200432900009
Las Vegas, Nevada )
) FRN 0001595495
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Los Angeles Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Prolink Inc. ("Prolink"), licensee of
station WPYZ348 in Las Vegas, Nevada, apparently willfully
violated Section 1.903(a) of the Commission's Rules ("Rules")1
by operating on an unauthorized frequency. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934,
as amended ("Act"),2 that Prolink is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
2. On March 9, 2004, field agents from the Commission's
Los Angeles Office investigated a complaint of interference
from a licensee on 456.3625 MHz in Las Vegas, Nevada. Using
radio direction finding techniques, the field agents located a
transmitter operating on 456.3625 MHz at the Las Vegas Paiute
Golf Resort. The agents positively determined that this
transmitter was causing the interference being received by the
licensee in Las Vegas. Subsequent inspection of the radio
transmitting equipment revealed that the transmitter was owned
by Prolink which held the associated license (WPYZ348). The
license held by Prolink and produced for the field agents,
however, did not authorize Prolink to transmit on 456.3625 MHz.
Later that day, a field agent from the Commission's Los Angeles
Office contacted a representative from Prolink who stated that
the frequency, 456.3625 MHz, was used intentionally because of
interference problems with other channels. The representative
also said that Prolink was in the process of attempting to
license this frequency, but had not done so yet.3
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. The term "willful"
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.4
4. Section 1.903(a) of the Rules5 states that ``[s]tations
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 . . . .'' At the time of the investigation, radio
station license WPYZ348 authorized Prolink to transmit on a
number of frequencies at the Las Vegas Paiute Golf Resort,
however, 456.3625 MHz was not among those frequencies. Prolink
acknowledged to a Commission field agent that it intentionally
used the unlicensed frequency because of interference problems
with other channels. Based on the evidence before us, we find
that Prolink willfully violated Section 1.903(a) of the Rules
by operating on an unauthorized frequency.
5. 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"), and Section 1.80 of the Rules, the base forfeiture
amount for using an unauthorized frequency is $4,000.6 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 violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.7 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $4,000
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,
Prolink Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of four thousand dollars ($4,000)
for violation of Section 1.903(a) of the Rules.8
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 for Forfeiture, Prolink
Inc., 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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
9. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos,
CA, 90703, and must include the NAL/Acct. No. referenced in the
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 for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.8
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 address listed above for
the filing of the response. 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 for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Prolink
Inc., 7970 S. Kyrene, Tempe, AZ 85284.
FEDERAL COMMUNICATIONS COMMISSION
District Director, Los Angeles
Enclosure: FCC List of Small Entities
147 C.F.R. § 1.903(a)
247 U.S.C. § 503(b).
3On April 1, 2004, Prolink filed an application for modification
of license WPYZ348 to include a number of frequencies, including
456.3625 MHz. See File No. 0001681799. This application for
modification was granted on July 27, 2004. Prolink's remedial
actions subsequent to a Commission investigation do not mitigate
Prolink's liability. See AT&T Wireless Services, Inc., 17 FCC
Rcd 21866 (2002).
4Section 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).
547 C.F.R. § 1.903(a).
612 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
747 U.S.C. § 503(b)(2)(D).
8See 47 C.F.R. § 1.1914.
8See 47 C.F.R. § 1.1914.