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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-07-SD-371
Action Communications, Inc. ) NAL/Acct. No.: 200832940002
Tucson, Arizona ) FRN: 0004527958
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 25, 2008
By the District Director, San Diego Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Action Communications, Inc. ("Action"), licensee of Commercial
Mobile Radio Service and Specialized Mobile Radio stations in Tucson,
Arizona, area, apparently willfully and repeatedly violated Sections
308(b) and 403 of the Communications Act of 1934, as amended ("Act"),
by failing to respond to Commission correspondence requiring written
statements of fact relating to the operation of a General Mobile Radio
Service ("GMRS") station. We conclude, pursuant to Section 503(b) of
the Act, that Action is apparently liable for a forfeiture in the
amount of four thousand dollars ($4,000).
2. On September 26, 2007, the Enforcement Bureau's San Diego Office ("San
Diego Office") was advised by GMRS users in the Tucson, Arizona area
that a possible unlicensed operation was active on GMRS frequency
462.700 MHz from a business. Later that day, an agent from the San
Diego Office, using a mobile direction-finding vehicle, was able to
locate the source of the unknown GMRS signal to 2816 Stone Avenue,
Tucson, Arizona, the business address for Action. The San Diego agent,
however, was unable to conduct an inspection at that time.
3. A review of Commission databases revealed that Action held multiple
licenses, but none for that frequency in that location. Consequently,
on October 30, 2007, the San Diego Office issued a Letter of Inquiry
("LOI") to Action by Certified Mail, Return Receipt Requested, seeking
information regarding the station operating at 2816 Stone Ave.,
Tucson, Arizona, and whether Action held a valid Commission license
for its operation. In the LOI, Action was directed to respond by
November 13, 2007. On November 6, 2007, a signed Return Receipt for
the LOI dated October 30, 2007, was received by the San Diego Office.
4. On December 19, 2007, after receiving no response from Action to the
first LOI, the San Diego Office issued a second LOI by Certified Mail,
Return Receipt Requested. The second LOI was mailed to Action's
address of record, the same address as the location of the
unidentified GMRS station. The LOI required Action to provide a
written statement concerning its failure to respond to the first LOI
and an answer to the questions concerning the authorization for the
GMRS station. A copy of the first LOI was included. On December 27,
2007, a signed Return Receipt for the second LOI dated December 19,
2007, was received by the San Diego Office. As of February 22, 2008,
the San Diego Office had not received a response to either LOI.
5. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 403 of the Act authorizes the Commission to institute on its
own motion any inquiry into, inter alia, any matter relating to the
enforcement of the Act or the Commission's rules. Section 403 also
gives the Commission broad authority to "make and enforce orders"
relating to the matter under investigation." Section 308(b) of the Act
provides that the Commission "during the term of any such licenses,
may require from ...a licensee further written statements of fact to
enable it to determine whether ... such license [should be] revoked .
7. On October 30, 2007, the San Diego Office issued a LOI requiring
Action to provide the information concerning its license status by
November 13, 2007. Action signed the return receipt for the LOI but
failed to respond. On December 19, 2007, the San Diego Office issued a
second LOI to Action's address of record, which included a copy of the
first LOI and required a response by January 2, 2008. Action signed
the return receipt for the second LOI. To date, however, Action has
not filed the required response.
8. Action was aware of the LOI's issued by the San Diego Office, and
acknowledged their receipt, but failed to respond. Therefore, Action'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 Action apparently willfully and repeatedly violated Sections
308(b) and 403 of the Act by failing to respond to Commission
9. 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 failure to respond to Commission
communications is $4,000. 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 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Action is
apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
10. 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, Action Communications, Inc.,
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for willfully and repeatedly
failing to respond in writing to Commission correspondence.
11. IT IS FURTHER ORDERED that, pursuant to Section 308(b) of the
Communications Act of 1934, as amended, Action Communications, Inc.,
is hereby directed to provide answers to the questions listed in the
Letter of Inquiry dated October 30, 2007 within thirty days of the
release date of this Notice of Apparent Liability for Forfeiture.
12. 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, Action Communications,
Inc., SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
13. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures.
14. The response, if any, and the answers to the questions listed in the
LOI must be mailed to Federal Communications Commission, Enforcement
Bureau, Western Region, San Diego Office, 4542 Ruffner St., Suite 370,
San Diego, CA 92111, and must include the NAL/Acct. No. referenced in
15. 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.
16. 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 Action Communications Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
San Diego Office
47 U.S.C. S:S: 308(b), 403.
47 U.S.C. S: 503(b).
See, e.g., call signs KNNM858, WNGC439, WNGQ501, WNJZ649.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
47 U.S.C. S: 403.
SBC Communications, 17 FCC Rcd 7589, 7592 (2002).
47 U.S.C. S: 308(b).
See World Communications Satellite Systems, Inc., 19 FCC Rcd 2718 (EB
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission