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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-SE-271
) NAL/Acct. No. 200432100011
DIRECTV, Inc. ) FRN # 0004365367
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 14, 2004
Released: June 18, 2004
By the Commission:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find DIRECTV, Inc. (``DIRECTV'')1
apparently liable for forfeiture in the amount of eighty
seven thousand five hundred dollars ($87,500), the
applicable statutory maximum, against DIRECTV for
unauthorized repositioning of the DIRECTV 3 satellite
(``DIRECTV 3'' or ``satellite'') from the orbit at which it
is authorized, and maintenance of that satellite at
unauthorized locations, in willful and repeated violation of
Section 25.117(a) of the Commission's Rules (``Rules'').2
2. DIRECTV is the licensee of the DIRECTV 3
Direct Broadcast Satellite (``DBS'') service satellite. On
September 3, 2003, DIRECTV requested special temporary
authority (``STA request'') to relocate the DIRECTV 3
satellite from a super-synchronous storage orbit 308
kilometers above the geostationary orbit, to a Canadian-
assigned Broadcast Satellite Service (``BSS'') orbital
position at 82° west longitude (``W.L.'') and to conduct the
telemetry, tracking and command (``TT&C'') functions of the
satellite for 60 days once DIRECTV 3 was relocated.3 That
orbital location is allotted to Canada under the
International Telecommunication Union's plans for BSS and
associated feeder links in the 12.2-12.7 GHz and 17.3-17.8
GHz bands, respectively. The STA request to relocate
DIRECTV 3 was filed to effect an agreement between DIRECTV
and Telesat Canada.4
3. In the STA request, DIRECTV explained that
(1) during relocation of the satellite back into
geostationary satellite orbit DIRECTV would not operate the
BSS communications payload on the satellite; (2) Telesat
would operate the satellite at 82° W.L. under authorization
from Industry Canada; and (3) once the satellite was
relocated, it would be used exclusively by Telesat or its
customers to facilitate service to Canadian BSS
subscribers.5 The STA request was filed on September 3,
2003. The request indicated that the ``window'' for
communicating with the satellite would close on or about
September 25, 2003.6
4. On September 4, 2003, DIRECTV personnel
caused commands to be communicated to reposition the DIRECTV
3 satellite via a series of maneuvers that would have
eventually had the satellite on-station and finally
positioned at 82° W.L. on or about October 15, 2003.7 The
satellite was eventually relocated to an orbit at or very
near the geostationary satellite orbital arc, and in the
immediate vicinity of the 82° W.L. orbital position sought
under the STA request. On or about September 29, 2003,
counsel for DIRECTV communicated with Commission staff to
note the issuance of a Canadian authorization, on September
26, 2003, for operation of DIRECTV 3 at the 82° W.L.
location, and to seek approval for the STA. In response to
a question from staff concerning whether it was still
possible to maneuver DIRECTV 3 as requested, given that the
``window'' for communications had now passed, counsel for
DIRECTV indicated that the drift of the satellite had been
altered. Staff then inquired as to whether that action had
been authorized. Subsequently, during the week of September
29, 2003, DIRECTV ceased communicating with the DIRECTV 3
satellite, and arranged a meeting with the International
Bureau (``IB'') to describe the sequence of events leading
to the relocation of the satellite.8 This meeting took place
on October 2, 2003.9 On October 3, 2003, DIRECTV requested
an STA to ``execute an additional maneuver to stop the
westward movement of the satellite to mitigate any risk of
collision with other operational satellites.''10 IB orally
granted this limited STA request on October 3, 2003.11
5. In a letter to IB dated October 9, 2003,
DIRECTV acknowledged that its movement of the DIRECTV 3
satellite on September 4, 2003, was not authorized by the
Commission and indeed was the very purpose of the pending
STA.12 DIRECTV explained that an initial ambiguous
communication from a DIRECTV Senior Vice President,
Communications Systems, to a subordinate, though ``intended
to begin planning the process of relocating the satellite,''
resulted in a relocation ``prior to the grant of the STA
request.''13 DIRECTV also stated that on or about September
12, 2003, when the Senior Vice President became aware of the
movement of DIRECTV 3, ``he erred and mistakenly did not
attribute significance to the event since the satellite
remained in a storage orbit with the communications payload
turned off,'' thus judging that DIRECTV 3 would not pose a
risk to other satellites.14 DIRECTV further asserted that
it has developed a formal policy that will ensure that any
future proposed satellite relocations to other orbital
positions are vetted and monitored by the DIRECTV General
Counsel to ensure compliance with the Commission Rules.15
IB referred the matter to the Enforcement Bureau for
6. Under Section 25.117(a) of the Rules,
Commission approval is required before a modification may be
implemented which affects the parameters or terms and
conditions of a Part 25 radio station authorization.16
DIRECTV readily acknowledges that its personnel began
repositioning the satellite one day after DIRECTV applied
for the STA request to relocate DIRECTV 3 without Commission
approval of that modification. Accordingly, we find that
DIRECTV's unauthorized modification of the subject satellite
apparently willfully17 and repeatedly18 violated Section
25.117(a) of the Rules.
7. In light of DIRECTV's apparent willful and
repeated violation of Section 25.117(a) of the Rules, we
find that a forfeiture is warranted. Section 503(b)(1)(B)
of the Act states that any person who willfully or
repeatedly fails to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission,
shall be liable for a forfeiture penalty.19 The Commission
is authorized to assess a forfeiture of up to $11,000 for
each violation, or each day of a continuing violation, by a
non-common carrier or other entity not specifically
designated in Section 503(b), up to a statutory maximum of
$87,500 for a single act or failure to act.20 In
determining the appropriate forfeiture amount, we must
consider the factors enumerated in Section 503(b)(2)(D) of
the Act, including ``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 such other matters as justice may
8. The Commission's Forfeiture Policy Statement
and Section 1.80 of the Rules establish a base forfeiture
amount for the operation at an unauthorized location or
frequency of $4,000.22 However, we think that a substantial
upward adjustment of this base forfeiture amount is
warranted. As DIRECTV implicitly acknowledged in its
October 3, 2003 STA request,23 strict adherence to the rules
that govern modification of satellite authorizations is
critical to minimizing the risk of collision of satellites.
Moreover, DIRECTV's violation has continued since September
4, 2003, when DIRECTV began the process of repositioning the
9. In addition, in the Forfeiture Policy
Statement, the Commission made clear that companies with
higher revenues, such as DIRECTV,25 could expect forfeitures
higher than those reflected in the base amounts:
[O]n the other end of the spectrum of potential
violations, we recognize that for large or highly
profitable communication entities, the base
forfeiture amounts ... are generally low. In this
regard, we are mindful that, as Congress has
stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture
must be issued at a high level.... For this
reason, we caution all entities and individuals
that, independent from the uniform base forfeiture
amounts ..., we intend to take into account the
subsequent violator's ability to pay in
determining the amount of a forfeiture to
guarantee that forfeitures issued against large or
highly profitable entities are not considered
merely an affordable cost of doing business. Such
large or highly profitable entities should expect
in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may
in many cases be above, or even well above, the
relevant base amount.26
10. We believe that the factors cited above
justify the maximum proposed forfeiture. Further, while we
find DIRECTV's efforts to ensure compliance with the
provisions of Section 25.117(a) of our Rules in the future
commendable, such a post-remedial measure does not lessen,
mitigate, or excuse its past violation.27 Considering all
of the enumerated factors and the particular circumstances
of this case, we conclude that DIRECTV is apparently liable
for a forfeiture in the amount of the statutory maximum of
$87,500 for its apparent willful and repeated violation of
Section 25.117(a) of the Rules.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act and Section 1.80 of the Rules,
DIRECTV, Inc. IS hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eighty seven thousand five
hundred dollars ($87,500) for willfully and repeatedly
violating Section 25.117(a) of the Rules.
12. IT IS FURTHER ORDERED THAT, pursuant to
Section 1.80 of the Rules, within thirty days of the release
date of this Notice of Apparent Liability for Forfeiture and
Order, DIRECTV, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
13. Payment of the forfeiture may be made by
mailing a check or similar instrument, payable to the order
of the Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment must include the FCC Registration Number
(``FRN'') and the NAL/Acct. No. referenced in the caption.
14. The response, if any, must be mailed to the
Office of the Secretary, Federal Communications Commission,
445 12th Street, S.W., Washington, D.C. 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must
include the NAL/Acct. No. referenced in the caption.
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; 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.
Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.28
16. IT IS FURTHER ORDERED that a copy of this
Notice of Apparent Liability for Forfeiture and Order shall
be sent by first class mail and certified mail return
receipt requested, to James R. Butterworth, Senior Vice
President, Communications Systems, DIRECTV, Inc., 2230 East
Imperial Highway, El Segundo, CA 90245, and James H. Barker
III, Esq., Latham & Watkins, LLP, 555 11th Street, NW, Suite
1000, Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 DIRECTV is a wholly-owned subsidiary of DIRECTV
Enterprises, LLC, which is a Commission licensee in the
high-power DBS service, and a wholly-owned subsidiary of
the DirecTV Group, Inc.
2 47 C.F.R. §§ 25.117(a) (no modification of a radio
station governed by Part 25 of the Rules which affects the
parameters or terms and conditions of station authorization
except upon prior Commission grant).
3 DIRECTV, Inc.; Request for Special Temporary Authority to
Relocate DIRECTV 3 to 82° W.L. and to Conduct Telemetry,
Tracking and Command (``TT&C'') Operations for an Interim
Period, (Sept. 3, 2003) (``STA request'' or ``September 3,
2003 STA request'').
4 Id. at 1.
5 Id. at 2.
6 Id. at 1. At an altitude of 308 kilometers above the
geostationary satellite orbit, a satellite drifts westward
at a rate of slightly less than three degrees in longitude
per day. Thus, there is a limited ``window'' of time in
which it is possible for an Earth station in the United
States to communicate with the satellite.
7 See Letter from Gary M. Epstein, Counsel for DIRECTV,
Inc. to Thomas S. Tycz, Chief, Satellite Division,
International Bureau, Federal Communications Commission 3
(Oct. 9, 2003) (``Status Letter'').
8 Status Letter at 3.
10 Id. at 4. See DIRECTV, Inc.; Request for Special
Temporary Authority to Relocate DIRECTV 3 to 82° W.L. and
to Conduct Telemetry, Tracking and Command Operations for
an Interim Period (Oct. 3, 2003) (``October 3, 2003 STA
Request''). In its October 3, 2003 STA Request, DIRECTV
noted that the DIRECTV 3 satellite presently is drifting
toward Telesat Canada's Nimiq-2 satellite at a rate of
0.025°/day and will enter the Nimiq-2 stationkeeping box of
82° W.L. on October 4, 2003. In order to ``minimize any
risk of collision of these satellites,'' DIRECTV requested
STA to execute a stationkeeping maneuver to stop the drift
of DIRECTV 3, in order to keep it out of Nimiq-3's orbital
box, as well as to preclude DIRECTV 3 from drifting further
westward. DIRECTV asserted that ``[t]his safety measure is
manifestly in the public interest.'' Id. at 1.
11 See File No. SAT-STA-20031003-00310.
12 Status Letter at 3.
15 Id. at 4.
16 None of the exceptions to the requirement of prior
Commission approval for modifications, as described in
Section 25.118 of the Rules, 47 C.F.R. § 25.118, apply
17 Section 312(f)(1) of the Communications Act of 1934, as
amended (``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,'
... 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)
(``Southern California'') (discussing legislative history
regarding applicability of Section 312(f)(1) definition of
``willful'' to Section 503(b)).
18 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2),
which also applies to forfeitures assessed pursuant to
Section 503(b) of the Act, provides that ``[t]he term
`repeated,' ... means the commission or omission of such
act more than once or, if such commission or omission is
continuous, for more than one day.'' See Southern
California, 6 FCC Rcd at 4388.
19 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. §
20 Section 503(b)(2)(C) provides for forfeitures up to
$10,000 for each violation by cases not covered by
subparagraph (A) or (B), which address forfeitures for
violations by broadcast licensees and common carriers,
among others. See 47 U.S.C. § 503(b). In accordance with
the inflation adjustment requirements contained in the Debt
Collection Improvement Act of 1996, Pub. L. 104-134, Sec.
31001, 110 Stat. 1321, the Commission implemented an
increase of the maximum statutory forfeiture under Section
503(b)(2)(C) to $11,000. See 47 C.F.R. § 1.80(b)(3);
Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 15
FCC Rcd 18221 (2000).
21 47 U.S.C. § 503(b)(2)(D); see also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17100 (1997) (``Forfeiture Policy
Statement''), recon. denied, 15 FCC Rcd 303 (1999); 47
C.F.R. § 1.80(b)(4).
22 Forfeiture Policy Statement, 12 FCC Rcd at 17114; 47
C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4): Section I.
Base Amounts for Section 503 Forfeitures.
23 See supra n. 9 and accompanying text.
24 In successive correspondence, DIRECTV notified IB of
four additional maneuvers involving the subject satellite.
See Letters from James H. Barker, counsel to DIRECTV, Inc.,
to Thomas S. Tycz, Chief, International Bureau, Satellite
Division, Federal Communications Commission (Nov. 21, 2003;
Dec. 8, 2003; Dec. 30, 2003; and Jan. 15, 2004).
25 DIRECTV, Inc. reported that it had total revenues of
$7.193 Billion in 2002. See
26 Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See also 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4),
Note to paragraph (b)(4): Section II. Adjustment Criteria
for Section 503 Forfeitures.
27 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd
21866, 21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099
(1994); Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
28 See 47 C.F.R. § 1.1914.