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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
                                 )       File Number: EB-04-SD-187
Kojo Worldwide Corporation       )
San Diego, California            )      NAL/Acct. No: 200532940005
                                 )
                                 )               FRN: 0011-1635-16



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                             Released:  September 
                                                         28, 2005

By the District Director, San Diego Office, Western Region, 
Enforcement Bureau:


I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that Kojo Worldwide Corporation ("Kojo"), an 
 operator of a microwave radio station in San Diego, California, 
 apparently willfully and repeatedly violated Section 301 of the 
 Communications Act of 1934, as amended (``Act''),1 by operating 
 an unlicensed microwave radio station on microwave channels 
 22355.0 MHz and 22471.75 MHz.2  We conclude, pursuant to 
 Section 503(b) of the Act,3 that Kojo is apparently liable for 
 a forfeiture in the amount of ten thousand dollars ($10,000).


II.  BACKGROUND

      2.    On November 18, 2004, an agent from the Commission's 
 San Diego Office was investigating allegations that companies 
 in the Otay Mesa area of San Diego were using unauthorized 
 microwave radio stations to communicate with sister companies 
 across the U.S. - Mexico border in Tijuana, Mexico.  The agent 
 monitored and measured the transmissions of a microwave radio 
 station operated at the offices of Kojo Worldwide Corporation, 
 at 9654 Siempre Viva Road, San Diego, California.  The 
 frequency measurement showed that this microwave radio station 
 was operating on microwave channel 22355.0 MHz.  At this time, 
 the agent conducted an inspection of the radio station with the 
 Kojo staff.   The agent requested a copy of Kojo's station 
 authorization for its microwave radio station, but none could 
 be produced.    

      3.  On December 1 and 2, 2004, the San Diego agent returned 
 to the Kojo site and again measured the microwave radio station 
 operating on the microwave channel 22355.0 MHz.  No inspection 
 was attempted on either day.

      4.  A review of the Commission's database revealed that 
 Kojo has no authorization to operate a point-to-point microwave 
 radio station at 9654 Siempre Viva Road.  Kojo does have a 
 pending application for license, filed November 1, 2004, for 
 operation on 22471.75 MHz for this transmitter site (``2004 
 Application'').4  Kojo previously submitted three applications 
 for microwave radio stations in 2001.  However, all three 
 applications were dismissed in 2001 as failing to submit the 
 required application filing fee.5  In each of the dismissal 
 letters, Kojo was cautioned that ``[i]f you are currently 
 operating under authority provided by the Commission's Rules 
 based on your submission of the above referenced application, 
 you must immediately cease operation until such time as you 
 come into compliance with the Rules.''

      5.  On December 17, 2004, the San Diego Office sent a 
 Notice of Unlicensed Operation (``NOUO'') to Kojo concerning 
 its unauthorized operation on 22355.57 MHz, in violation of 
 Section 301 of the Act.6  The San Diego Office received a reply 
 to the NOUO from Kojo's attorney on December 27, 2004. 

      6.  In this reply, the attorney states that Kojo attempted 
 to apply for a microwave radio station in 2001.  During this 
 same time period, the attorney had another client who attempted 
 to apply for a microwave radio station in the same area in 
 order to communicate with a sister office in Mexico.  According 
 to the attorney, this other client attempted to obtain a 
 special temporary authority (``STA'') but was not granted one.  
 The attorney states that he was informed by the Commission's 
 International Bureau that ``(1) it would not be issuing any 
 more STA's, and (2) there would be no further enforcement 
 actions initiated by field offices regarding unlicensed cross-
 border 23 GHz systems.''7  The attorney then states that he 
 gave this advice to Kojo as well.  Upon receiving the NOUO, the 
 attorney states that Kojo ceased operation of the microwave 
 radio station in question and filed for special temporary 
 authority (``2004 STA Request'') to allow its operation. 

      7.  On March 24, 2005, and on August 9, 2005, San Diego 
 agents returned to the Kojo site and found the microwave radio 
 station operational but now on microwave channel 22471.75 MHz, 
 the frequency specified in their 2004 Application.  On August 
 18, 2005, the pending Kojo application for a Private 
 Operational Fixed Point-to-Point Microwave radio station on 
 22471.75 MHz, located at 9654 Siempre Viva Road, San Diego, 
 California, was granted under call sign WQDG466. 


III.      DISCUSSION

      8.            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) of the Act has been interpreted to mean simply that the 
 acts or omissions are committed knowingly.8  The term 
 ``repeated'' means the commission or omission of such act more 
 than once or for more than one day.9 
     
      9.  Section 301 of the Act requires 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 November 18, 2004, December 1, 2004 and December 2, 2004, 
 measurements made by San Diego agents revealed that Kojo was 
 operating a microwave radio station on microwave channel 
 22355.0 MHz.  On March 24, 2005 and August 9, 2005, 
 measurements made by San Diego agents revealed that Kojo was 
 operating a microwave radio station on microwave channel 
 22471.75 MHz.  A review of Commission records indicated that 
 Kojo had no authorization to operate on microwave channel 
 22355.0.MHz.   The review also indicated that Kojo had a 
 pending application, but no authorization, to operate on 
 microwave channel 22471.75 MHz until August 18, 2005.10   

      10.      Kojo was aware licensing for its microwave station 
 was required, as evidenced by its 2004 Application and 2004 STA 
 Request and as evidenced by the three dismissal letters it 
 received from the Commission in 2001.  Assuming arguendo that 
 Commission staff did advise Kojo's counsel that there would be 
 no further enforcement actions initiated by field offices 
 regarding unlicensed cross-border 23 GHz systems in 2001, 
 Kojo's reliance on this advice in 2004 and 2005 is misplaced.  
 Licensing for cross-border microwave stations was taking place 
 in 2004 and 2005, the period during which the San Diego Office 
 agents observed and questioned Kojo's unauthorized operations.  
 On December 27, 2004, when confronted with its unauthorized 
 operation on microwave channel 22355.0 MHz by the San Diego 
 Office, Kojo replied that it had taken the microwave station in 
 question out of operation.  Follow-up investigation by the San 
 Diego Office revealed that Kojo continued to operate the 
 microwave station, on microwave channel 22471.75 MHz, after 
 agents visited the Kojo site on March 24, 2005 and on August 9, 
 2005.  Therefore, Kojo's violation was willful.  The violation 
 occurred on more than one day, therefore, it was repeated.  
 Based on the evidence before us, we find that Kojo apparently 
 willfully and repeatedly violated Section 301 of the Act by 
 operating a microwave radio station without authorization.

      11.           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 operation without an instrument of authorization for 
 the service is $10,000.11  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.12  Applying the Forfeiture 
 Policy Statement, Section 1.80, and the statutory factors, we 
 conclude that Kojo is apparently liable for a forfeiture in the 
 amount of $10,000.


IV.  ORDERING CLAUSES

      12.           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, 
 Kojo Worldwide Corporation is hereby NOTIFIED of this APPARENT 
 LIABILITY FOR A FORFEITURE in the amount of ten thousand 
 dollars ($10,000) for violation of Section 301 of the Act.13

      13.           IT IS FURTHER ORDERED that, pursuant to 
 Section 1.80 of the Commission's Rules, within thirty (30) days 
 of the release date of this Notice of Apparent Liability for 
 Forfeiture, Kojo Worldwide Corporation SHALL PAY the full 
 amount of the proposed forfeiture or SHALL FILE a written 
 statement seeking reduction or cancellation of the proposed 
 forfeiture.

      14.      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 bycheck 
 or money order may be mailed to Federal Communications 
 Commission, P.O. Box358340,Pittsburgh, PA 15251-8340. 
 Payment by overnight mail may be sent toMellon 
 Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, PA 
 15251. Payment by wire transfer may be made to ABA 
 Number043000261, receiving bankMellon Bank, and account 
 number911-6106.  

      15.           The response, if any, must be mailed to 
 Federal Communications Commission, Enforcement Bureau, Western 
 Region, San Diego Office, 4542 Ruffner Street, Suite 370, San 
 Diego, California 92111, within thirty (30) days from the 
 release date of this Notice of Apparent Liability for 
 Forfeiture and must include the NAL/Acct. No. referenced in the 
 caption.  

      16.           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.  

      17.           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. 20554.14









      18.           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 
 Kojo Worldwide Corporation at its address of record.






                              FEDERAL COMMUNICATIONS COMMISSION




                              William R. Zears, Jr.
                              District Director 
                              San Diego Office
                              Western Region
                              Enforcement Bureau
_________________________

147 U.S.C.  301.
247 C.F.R.  101.147(s). 
347 U.S.C.  503(b).
4See File No. 0001919664.
5See File No. 0000432307, dismissed June 8, 2001; File No. 
0000477582, dismissed June 19, 2001; and  File No. 00000506891, 
dismissed July 18, 2001.
622355.57 MHz is within the maximum allowable tolerance of 
microwave channel 22355.0 MHz.  See 47 C.F.R.  101.147(s).  
7We note that the attorney  indicates that this advice was  given 
orally and nothing was given to him in writing. 
8Section 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).
9 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.'' 
10Pursuant to Sections 101.31(b)(1) and 101.31 (b)(1)(v) of the 
Rules, 47 C.F.R.  101.31(b)(1), 101.31(b)(1)(v), certain 
applicants for point-to-point microwave stations, not located 
within 56.3 kilometers of any international border, operating in 
certain frequency bands, are deemed to have conditional authority 
to operate their proposed stations during the pendency of their 
applications.  The frequency proposed for use by Kojo in its 
applications is not contained in these frequency bands.  Also, 
Kojo's proposed station is located approximately 0.75 km from the 
Mexican border. 
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
1247 U.S.C.  503(b)(2)(D).
1347 U.S.C.  301, 503(b), 47 C.F.R.  0.111, 0.311, 1.80.
14See 47 C.F.R.  1.1914.