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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-DV-020
Echonet Corporation )
) NAL/Acct. No. 200332800011
Television Translator )
Station K49AY ) FRN 0008379216
Cheyenne, Wyoming )
Adopted: December 17, 2004
Released: December 21, 2004
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) to Echonet Corporation for repeated violation of
Section 301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Echonet's repeated
operation of a television broadcast translator station
without Commission authorization.
2. On October 22, 2002, an agent from the FCC's
Denver Office received information that a television
translator was operating on channel 49 in Cheyenne, Wyoming,
without a valid FCC station license. The agent monitored
transmissions on channel 49 in Cheyenne from October 22
through October 24, 2002, and observed retransmitted
broadcast television programming on the aural carrier
frequency of 685.7545 MHz. On October 24, 2002, using
direction finding techniques, the agent located the
station's transmitter on the top floor of the Community
First National Bank at 1800 Carey Avenue in Cheyenne,
Wyoming. Evidence discovered during the inspection revealed
Echonet as the station operator. Review of the FCC's
databases revealed that Echonet held a license for K49AY,
Facility ID 18475, granted on July 10, 1986, for a
television translator at coordinates 41° 08' 04" north
latitude and 104° 49' 02" west longitude. The license for
K49AY expired on October 1, 1998. Further review on March
26, 2003, of the FCC's databases revealed no current license
issued for a television translator station to operate on
channel 49 in Cheyenne, Wyoming, and no pending application
or renewal application for channel 49 in Cheyenne, Wyoming.
3. On April 3, 2003, the Denver Office issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to
Echonet in the amount of ten thousand dollars ($10,000) for
the apparent repeated violation of Section 301 of the Act.2
In its response, Echonet does not argue that it held a valid
license at the time the NAL was issued. Instead, it argues
that the failure to file a renewal application for the
translator was inadvertent and the result of a mistake by
individuals, other than Echonet, involved in a transaction
concerning other assets and stations.3 Echonet states that
its act of operating the translator was not a willful or
knowing violation of the Commission's Rules, that it has
never been subject to a forfeiture action before, that it
has no other assets other than the license and the equipment
related to the license, and that for the last ten years the
translator has been used to broadcast public interest
programming in Spanish and other programming not available
by broadcast in the community. For these reasons, Echonet
requests that the forfeiture be retracted.
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,4
Section 1.80 of the Commission's Rules (``Rules''),5 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''). In
examining Echonet's response, Section 503(b) of the Act
requires that the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with
respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such
matters as justice may require.6
5. 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 within the United
States except under and in accordance with the Act and with
a license. Echonet does not assert that it had a valid
license during the more than four year period noted in the
NAL, it only argues that its failure to renew the license
was inadvertent and was not a willful or knowing violation
of the Commission's Rules. We note that the Denver Office
did not find any apparent willful violation by Echonet.
Rather, it found that Echonet repeatedly violated Section
301. Because we find the violation to be repeated, we need
not address Echonet's argument that the violation was not
6. Echonet also asks that we reconsider the
forfeiture pursuant to Section 503(b)(2)(D) of the Act in
the light most favorable to Echonet.8 Taking these
statutory factors into account, we note that Echonet had
previously been licensed to operate translator K49AY, so
this violation is not comparable to ``pirate'' wireless
operations, which typically have been subject to forfeitures
of approximately $10,000.9 In similar circumstances, where
a licensee failed to file a timely renewal application and
was apparently operating without authorization, the
Commission reduced a proposed forfeiture for unauthorized
operation to $5,000.10 Consequently, we reduce Echonet's
forfeiture amount to $5,000.
7. Echonet also states that it has no assets other
than the license and equipment of the station, however, it
provides no additional information or documentation
supporting this statement. Absent submission of supporting
financial documentation, we cannot assess a violator's
inability to pay and we will not reduce or cancel a
forfeiture on these grounds.11 Finally, in support of its
request for reduction, Echonet states that it has never been
subject to a forfeiture action. We have reviewed our
records and we find no instances of Echonet's having
received a forfeiture or violation notice. Consequently, we
reduce Echonet's forfeiture amount by an additional $1,000.
8. We have examined Echonet's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Echonet repeatedly violated Section
301 of the Act. Considering the entire record and the
factors listed above, we find that reduction of the proposed
forfeiture is warranted, given the circumstances surrounding
Echonet's unauthorized operation and its compliance record
with the Commission's Rules. Accordingly, the forfeiture
amount is reduced from ten thousand dollars ($10,000) to
four thousand dollars ($4,000).
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 and 1.80(f)(4) of the
Commission's Rules,12 Echonet Corporation IS LIABLE FOR A
MONETARY FORFEITURE in the amount of four thousand dollars
($4,000) for repeatedly violating Section 301 of the Act.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30
days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred
to the Department of Justice for collection pursuant to
Section 504(a) of the Act.13 Payment by check or money
order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank
One, and account number 1165259. The payment should note
NAL/Acct. No. 200332700027, and FRN 0009232976. Requests
for full payment under an installment plan should be sent
to: Chief, Revenue and Receivables Group, 445 12th Street,
S.W., Washington, D.C. 20554.14
11. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Echonet Corporation, 400 Inverness
Parkway, Suite 250, Englewood, Colorado, 80112.
George R. Dillon
Assistant Chief, Enforcement
147 U.S.C. § 301.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800011 (Enf. Bur., Denver Office, April 3, 2003).
3After the release of the NAL, Echonet filed a renewal
application with the Commission which was accepted on July
28, 2003, and granted on October 30, 2003. See File No.
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
7See Section 503(b)(1) of the Act, 47 U.S.C. § 503(b)(1)
(violator liable for forfeiture if violation is willful or
847 U.S.C. § 503(b)(2)(D).
9See, e.g., Joe L. Ford, d/b/a Ford Communications, 15 FCC
Rcd 23721 (E.B. 2000).
10Discussion Radio Incorporated, 19 FCC Rcd 7433, 7438
(2004). See, also, Gateway Security Systems, Inc., Jamaica,
NY, (2003 WL 22717864) (DA 03-3660) (EB 2003).
11See Webnet Communications, Inc., 18 FCC Rcd 6870 (2003).
We also reject Echonet's contention that its unauthorized
operation caused no harm, but actually served the public
interest. See AGM-Nevada LLC, 18 FCC Rcd 1476, 1478-1479
(E.B. 2003) (concluding that ``the absence of interference
or any showing of harm to the public interest does not
entitle AGM to a reduction of the proposed forfeiture'').
1247 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1347 U.S.C. § 504(a).
14See 47 C.F.R. § 1.1914.