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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-09-LA-0003
Costco Wholesale Corporation/Costco
#737 ) NAL/Acct. No. 201032900002
Las Vegas, Nevada ) FRN: 0018778076
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 22, 2009
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Costco Wholesale Corporation/Costco #737 ("Costco), in Las Vegas,
Nevada, apparently willfully and repeatedly violated Section 301 of
the Communications Act of 1934, as amended ("Act") by operating radio
transmitters without a license. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Costco is apparently liable for a forfeiture in the amount of five
thousand dollars ($5,000).
II. BACKGROUND
2. On May 6, 2009, in response to a complaint of unauthorized use on
154.540 MHz in Las Vegas, Nevada, an agent from the Enforcement
Bureau's Los Angeles Office, using radio direction finding techniques,
located transmissions on 154.540 MHz to a Costco store at 6555 N.
Decatur Boulevard, Las Vegas, Nevada ("Decatur Boulevard Location").
3. On May 7, 2009, the Los Angeles agent, again using radio direction
finding techniques, located transmissions on 154.540 MHz to the Costco
store at the Decatur Boulevard Location. The Los Angeles agent then
spoke with the store manager at the Costco store. The manager was
unaware of the requirement to have an authorization to operate on this
frequency and could produce no license to verify that an authorization
existed to operate on frequency 154.540 MHz. The manager stated that
the communications system was installed and put into operation by
Costco maintenance staff. The manager stated that Costco would
immediately research the possibility of acquiring a license to operate
on 154.540 MHz. Review of the Commission databases revealed that
Costco Wholesale Corporation has an authorization, WPWT411, to operate
at another location in the Las Vegas area, however, its authorization
only included frequencies 468.4125, 461.3125, 468.8625, and 469.2875
MHz.
4. On May 15, 2009, the Los Angeles agent received e-mail notification
from the manager stating that Costco had applied for a license to
operate the radio system.
5. On June 8, 2009, Costco was granted an authorization, WQKI861, to
operate from the Decatur Boulevard Location on 461.650, 463.350,
466.650, 466.975, and 468.350 MHz. On June 23, 2009, Costco was
granted a modification to WQKI861, which changed its authorized
operating frequencies to 151.520, 151.745, 159.525, 159.645, and
160.095 MHz.
III. DISCUSSION
6. 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.
7. Section 301 of the Act states that "[no] person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio... except under and in accordance with this Act and
with a license in that behalf granted under the provisions of this
Act." On May 6 and May 7, 2009, the Los Angeles agent located
transmissions on 154.540 MHz to the Costco store at the Decatur
Boulevard Location. The store manager acknowledged to the agent that
the store had no license authorizing operations on 154.540 MHz. While
Costco has a license to operate at another location in the Las Vegas
area, there is no evidence that its license authorized Costco to
operate on 154.540 MHz from the Decatur Boulevard Location. The
violation occurred on more than one day, therefore, it was repeated.
As the holder of multiple FCC licenses, Costco was aware such
operations required a license. Therefore, the violation was willful.
Based on the evidence before us, we find that Costco apparently
willfully and repeatedly violated Section 301 of the Act.
8. 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 is $10,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(E) 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 Costco's
operation is not analogous to a "pirate" station operator, and,
consequently, we downwardly adjust the proposed forfeiture amount to
$5,000. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Costco is
apparently liable for a $5,000 forfeiture.
IV. ORDERING CLAUSES
9. 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, Costco Wholesale
Corporation/Costco #737 is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of five thousand dollars ($5,000) for
violations of Section 301 of the Act.
10. 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, Costco Wholesale
Corporation/Costco #737 SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. 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. Costco will also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA 90703, and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
13. 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.
14. 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 Costco Wholesale Corporation/Costco
#737, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
File No. 0003853269, granted June 8, 2009.
File No. 0003870172, granted June 23, 2009.
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: 301.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Gateway Security Systems, Inc., 18 FCC Rcd 24026 (EB 2003).
47 U.S.C. S:S: 301. 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
1.903(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission