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

In the Matter of                 )
                                 )
                                 )       File Number: EB-05-SD-008
Pacnet Incorporated              )
San Diego (San Ysidro),          )      NAL/Acct. No: 200532940011
California                       )
                                 )               FRN: 0012-5042-13



             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 Pacnet Incorporated ("Pacnet"), an 
 operator of a microwave radio station in San Diego, California, 
 (San Ysidro area) 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 channel 22625.0 MHz.2  We conclude, pursuant to 
 Section 503(b) of the Act,3 that Pacnet is apparently liable 
 for a forfeiture in the amount of ten thousand dollars 
 ($10,000).


II.  BACKGROUND

      2.    On December 14, 2004, an agent from the Commission's 
 San Diego Office was investigating allegations that companies 
 in the San Ysidro 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 an unattended microwave radio site, leased 
 by Pacnet Incorporated, at 4650 Border Village Road, San Diego, 
 California.  The frequency measurement of this microwave radio 
 station revealed the station was operating on microwave channel 
 22625.0 MHz.

      3.  The San Diego agent returned to the Pacnet site on 
 January 25, 2005, and measured the microwave radio station 
 operating on microwave channel 22625.0 MHz.  An inspection was 
 attempted, but no one was available to make the station 
 available to the agent at that time.  However, the building 
 management staff told the agent that Pacnet was the owner of 
 the microwave radio station.

      4.  A review of the Commission's database revealed that 
 Pacnet has no authorization to operate a point-to-point 
 microwave radio station at 4650 Border Village Road.  However, 
 a request for special temporary authority (``STA'') was filed 
 by Pacnet on February 2, 2005, for the frequency 22625.0 MHz at 
 this transmitter site, followed by a license application for 
 the same frequency at the same location on February 4, 2005.4  
 On February 15, 2005, the Commission requested that Pacnet 
 supply additional information to support its STA request.  

      5.  On March 11, 2005, the San Diego Office sent a Letter 
 of Inquiry (``LOI'') to Pacnet concerning its operation on an 
 unauthorized frequency of 22625.0 MHz, in violation of Section 
 301 of the Act.  On March 23, 2005, a San Diego agent returned 
 to the Pacnet site and measured the microwave radio station 
 operating on microwave channel 22625.0 MHz.  

      6.  On April 14, 2005, Pacnet submitted a request to the 
 Commission to withdraw its pending application for a microwave 
 radio station at 4650 Border Village Road.  On May 15, 2005, 
 Pacnet's request for STA was dismissed because no reply was 
 received to the request for additional information.
  
      7.  The San Diego Office received a reply to the LOI on 
 June 10, 2005. In its reply, Pacnet states that the radio 
 equipment was purchased from a Mexican court which was 
 auctioning the equipment of a company that had gone out of 
 business.  Pacnet stated it did not know if the equipment had 
 any FCC authorizations. Pacnet further stated that it operated 
 the microwave station temporarily for ``?...testing and 
 alignment purposes and verification and setting of 
 frequencies.''  Pacnet also stated that it had decided not to 
 pursue an authorization for this microwave station.


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.5  The term 
 ``repeated'' means the commission or omission of such act more 
 than once or for more than one day.6 

      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 December 14, 2004, January 25, 2005, and March 23, 
 2005, measurements made by San Diego agents revealed that 
 Pacnet was operating a microwave radio station on the frequency 
 22625.0 MHz.  A review of Commission records indicated that 
 Pacnet had no authorization to operate on 22625.0 MHz. The 
 review also indicated that Pacnet had a pending application, 
 but withdrew it from consideration.  On June 10, 2005, Pacnet 
 acknowledged operating a microwave radio station on microwave 
 channel 22625.0 MHz and acknowledged that it had no license, 
 only a pending application, to operate such a station.7
 
      10.              Although Pacnet stated that its operation 
 was for ``testing purposes,'' our inspection reveals that 
 Pacnet's operation had been continuing for at least 90 days.  
 Pacnet was aware licensing for its station was required, as 
 evidenced by its license application.  Therefore, Pacnet'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 Pacnet apparently willfully and repeatedly 
 violated Section 301 of the Act by operating a microwave radio 
 station without authorization.  Further, because Pacnet does 
 not appear to have a license to operate the microwave station 
 in question, we will direct Pacnet to file a report with the 
 District Director of the San Diego Office detailing whether 
 Pacnet is continuing to operate the microwave station described 
 in this NAL and pursuant to what authority.

      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 $10,000.8  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.9  Applying the Forfeiture 
 Policy Statement, Section 1.80, and the statutory factors, we 
 conclude that Pacnet 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, 
 Pacnet Incorporated 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.10

      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, Pacnet Incorporated SHALL PAY the full amount of 
 the proposed forfeiture or SHALL FILE a written statement 
 seeking reduction or cancellation of the proposed forfeiture.

      14.            IT IS FURTHER ORDERED that Pacnet 
 Incorporated SHALL FILE, within thirty (30) days of the release 
 of this NAL, a report with the District Director, San Diego 
 Office, detailing whether Pacnet is continuing to operate the 
 microwave station described in this NAL and pursuant to what 
 authority.

      15.      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.  

      16.           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.  

      17.           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.  

      18.           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. 20554.11

      19.           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 
 Pacnet Incorporated 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. 0002032007, filed February 2, 2005 (STA 
Application) and File No. 0002031935, filed February 4, 2005 
(License Application).
5Section 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).
6Section 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.'' 
7Pursuant 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 Pacnet in its 
applications is not contained in these frequency bands.  Also, 
Pacnet's proposed station is located approximately 1.06 km from 
the Mexican border. 
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
947 U.S.C.  503(b)(2)(D).
1047 U.S.C.  301, 503(b), 47 C.F.R.  0.111, 0.311, 1.80.
11See 47 C.F.R.  1.1914.