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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
J.C. Penney Company, Inc. ) File Number: EB-04-
Licensee of Station WPVX841 )
Amherst, New York ) NAL/Acct. No.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that J.C. Penney Company, Inc. ("J.C. Penney"),
licensee of private land mobile station WPVX841 in Plano, Texas,
apparently willfully and repeatedly violated Sections 1.903(a)
and (b), Section 90.429(a) and (b), and Section 90.425(a) of the
Commission's Rules ("Rules").1 These noted violations involve
J.C. Penney's operation of a private land mobile station on an
unauthorized frequency, failure to properly identify its station,
and failure to maintain the required station control point. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"),2 that J.C. Penney is apparently liable
for a forfeiture in the amount of twenty-five thousand dollars
2. On November 4, 2004, the Buffalo Field Office
(``Buffalo Office'') received an interference complaint from a
licensee operating on 467.225 MHz in Buffalo, New York. An agent
from the Buffalo Office conducted a search of the FCC's database
and determined that only the complainant was licensed to operate
on 467.225 MHz in Buffalo, New York.
3. On November 5, 2004, using direction finding
techniques, the agent identified the source of the interference
as the J.C. Penney store located in the Boulevard Mall in
Amherst, New York. During the course of identifying the source
of the interference, the agent also monitored the transmissions
on 467.225 MHz for ninety minutes. The agent did not hear a
station identification at any time during that ninety-minute
4. Also on November 5, 2004, the agent conducted an
inspection of the station with one of the store's managers and
confirmed that the transmitter in the store was the source of the
interference. The manager contemporaneously stated to the agent
that there were twenty-eight mobile radios operating on the
frequency 467.225 MHz at the J.C. Penney store in Amherst, New
York and that the store had been using the radios for almost two
years. The manager could not locate a copy of the station's
license, but he contacted the J.C. Penney corporate office to
obtain a copy. The agent advised the manager that operation of a
private land mobile station without a valid license is a
violation of the Rules and that the station should cease
operations. The manager agreed not to operate the station until
the matter regarding whether J.C. Penney had a license was
5. Later that day, J.C. Penney's corporate office sent the
agent a copy of the license. According to the license, J.C.
Penney is the licensee for private land mobile station WPVX841
and is authorized to operate 10,000 units nationwide on the
frequency 467.225 MHz, provided that the licensee comply with the
``Special Condition'' that all operations be located south of
Line A and/or west of Line C.3 Such special conditions routinely
are imposed by the FCC to ensure compliance with the bilateral
agreement between the U.S. and Canada, which provides that
certain frequencies may not be assigned for operation north of
Line A without prior coordination between the U.S. and Canadian
governments.4 The bilateral agreement was reached between the
U.S. and Canada in order to resolve cross-border interference
6. On November 19, 2004, the Buffalo Office continued its
investigation and issued a Letter of Inquiry (``LOI'') to J.C.
Penney seeking information regarding its nationwide operations:
(1) the total number of stores operating radios on 467.225 MHz,
(2) the total number of stores operating north of Line A and the
number of radios in those stores, (3) whether any of the stores
are designated as ``control points'' for purposes of the license
for station WPVX841, (4) whether the stores using mobile radios
on the frequency 467.225 MHz are provided copies of the license
for WPVX841, and (5) whether there is a policy for identification
of station WPVX841 at each of the stores. J.C. Penney responded
to the LOI on December 13, 2004. In its response, J.C. Penney
reported that there are 1020 J.C. Penney stores that are equipped
with mobile radios that operate on 467.225 MHz and approximately
127 of those stores are located north of Line A. The 127 stores
located north of Line A operate a total of approximately 1524
mobile radios. J.C. Penney further reported that only its Plano,
Texas store is designated as a control point for purposes of the
WPVX841 license. J.C. Penney also stated that it is in the
process of ensuring that each station has a license posted and
that proper station identifications are provided on the radios.
7. 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.5 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.6
8. Section 1.903(a) provides 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.'' Section
1.903(b) provides that ``holding of an authorization does not
create any rights beyond the terms, conditions, and period
specified in the authorization.'' The license for station
WPVX841 includes a ``Special Condition,'' which specifically
states that the ``[a]rea of operation is restricted to south of
Line A and/or west of Line C.'' Based on the November 5, 2004
investigation, the FCC agent determined that the private land
mobile station operating on the frequency 467.225 MHz in a J.C.
Penney store located in Amherst, New York, north of Line A, was
causing interference to a station authorized to operate on that
frequency north of Line A. Moreover, during the inspection
conducted on November 5, 2004, one of the managers of the Amherst
J.C. Penney store reported to the agent that the store had been
operating twenty-eight mobile radios on that frequency for almost
two years.7 The operation of these mobile radios north of Line A
on the frequency 467.225 MHz was in direct contravention of the
9. Section 90.425(a) of the Rules provides that ``[e]ach
station and system shall be identified by the transmission of the
assigned call sign during each transmission or exchange of
transmissions, or once every 15 minutes (30 minutes in the Public
Safety Pool) during periods of continuous operation. The call
sign shall be transmitted by voice in the English language or by
International Morse Code in accordance with paragraph (b) of this
section.'' On November 5, 2004, the FCC agent from the Buffalo
Office monitored the station for ninety minutes during which time
the agent did not hear a station identification.
10. Section 90.429(a) of the Rules provides that ``[u]nless
permitted to be operated on an unattended basis, each station
shall be provided with a control point.'' Section 90.429(b) of
the Rules provides that the control point is an operating
position (1) that must be under the control and supervision of
the licensee; (2) where a person immediately responsible for the
operation of the transmitter is stationed; and (3) where the
monitoring facilities are installed. J.C. Penney's license for
station WPVX841 does not provide for operation on an unattended
basis. On November 5, 2004, the FCC Agent noted that J.C. Penney
did not maintain a control point for purposes of the license for
station WPVX841 at its Amherst, New York store.8
11. Based on the evidence before us, we find that the J.C.
Penney store located in Amherst, NY, apparently willfully and
repeatedly violated Sections 1.903(a) and (b), Sections 90.429(a)
and (b), and Section 90.425(a) of the Rules by operating its
private land mobile station in direct contravention of its
station authorization, by failing to properly identify the
Amherst station, and by failing to maintain a station control
point for the Amherst station.
12. 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 is four thousand dollars ($4,000) for operating on an
unauthorized frequency, one thousand dollars ($1,000) for failing
to provide a station identification, and three thousand dollars
($3,000) for violation of transmitter control requirements.9 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.10 Applying
the Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we find that an upward adjustment is
appropriate given the length of time that the J.C. Penney store
in Amherst, New York had operated north of Line A in direct
contravention of the station authorization.11 We therefore
conclude that J.C. Penney is apparently liable for a twenty-five
thousand dollar ($25,000) forfeiture.
13. It does not appear, based on a search of the FCC's
database, that J.C. Penney has modified its license for WPVX841.
Additionally, it is not apparent that J.C. Penney has brought its
other stores north of Line A into compliance with the FCC's
rules. We direct J.C. Penney to file a written statement
describing in detail, including a definitive number of stores
located north of the Line A, the steps it plans to take to ensure
that its private land mobile stations operating pursuant to the
license for station WPVX841 come into compliance with the FCC's
Rules regarding station control points and station
identification. In addition, we direct J.C. Penney to submit a
sworn statement that it will not operate its private land mobile
stations under the license for WPVX841 until such time that the
issues regarding its license are resolved.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules,
J.C. Penney Company, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand
dollars ($25,000) for violations of Sections 1.903(a) and (b),
90.429(a) and (b), and 90.425(a) of the Rules.12
15. 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, J.C. Penney
Company, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
16. IT IS FURTHER ORDERED that, within thirty days of the
release date of this Notice of Apparent Liability, J.C. Penney
Company, Inc. SHALL FILE a written statement as described in
paragraph 13 supra.
17. 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 Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
18. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast Region,
1550 Northwest Highway, Room 306, Park Ridge, IL, 60068, and must
include the NAL/Acct. No. referenced in the caption.
19. 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
20. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Associate Managing Director, Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
21. 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 J.C. Penney
Company, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
147 C.F.R. §§ 1.903(a), 1.903(b), 90.425(b), 90.429(a),
247 U.S.C. § 503(b).
3Section 90.7 of the Rules defines line A as: ``An imaginary
line within the U.S., approximately paralleling the U.S.-Canadian
border, north of which Commission coordination with Canadian
authorities in the assignment of frequencies is generally
required. It begins at Aberdeen, Washington . . . [to] the
southernmost point of Searsport, Maine, at which point it
terminates.'' 47 C.F.R. § 90.7. Similarly, line C is defined
as: ``An imaginary line in Alaska approximately paralleling the
border with Canada, East of which Commission coordination with
Canadian authorities in the assignment of frequencies is
generally required. It begins at 70º N., 144º W., thence by
great circle arc. . . so as to include all the Alaskan Panhandle.
4See Exchange of Notes (October 24, 1962) Between the Government
of Canada and the Government of the United States of America
Concerning the Coordination and Use of Radio Frequencies Above
Thirty Megacycles Per Second, Technical Annex (revised June 16,
1965). See also 47 C.F.R. § 1.928.
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
7We note that, in response to the November 19, 2004 LOI, J.C.
Penney stated that there are approximately 127 J.C. Penney stores
that operate north of Line A on 467.225 MHz, using a total of
1524 mobile radios.
8See 47 C.F.R. § 1.1914.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
11We note that each day is a violation and that, although the
statute of limitations does not permit us to assess forfeitures
for violations one year prior to the date of the Notice of
Apparent Liability, we can use prior bad behavior to determine an
appropriate forfeiture amount. See e.g., Roadrunner
Transportation, Inc. et al., 15 FCC Rcd 9669 (2000).
1247 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
1.903(a), 1.903(b), 90.425(b), 90.429(a), 90.429(b).
8See 47 C.F.R. § 1.1914.