Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Shared Data Networks, LLC ) File No. EB-04-SE-385
Satellite Earth Stations, Call ) NAL/Acct. No. 200632100001
Signs E900105, ) FRN # 0003827888
E900106, and E900107 )
Charlotte, North Carolina
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 17, 2005 Released: November
By the Chief, Spectrum Enforcement Division, Enforcement
1. In this Notice of Apparent Liability for
Forfeiture, we find Shared Data Networks, LLC (``SDN''),
licensee of satellite earth stations, E900105, E900106, and
E900107, Charlotte, North Carolina, apparently liable for a
forfeiture in the amount of nineteen thousand dollars
($19,000) for operating without Commission authority and
failing to file timely renewal applications for its three
earth stations in apparent willful and repeated violation
of Section 301 of the Communications Act of 1934, as
amended (``Act'')1 and Sections 25.102(a) and 25.121(e) of
the Commission's Rules (``Rules'').2
2. SDN operates a Very Small Aperture Terminal
(``VSAT'') system, comprised of earth stations E900105,
E900106, and E900107. SDN's authorizations for each of its
earth stations specified license terms that commenced on
March 23, 1990 and expired on March 23, 2000.3 In December
of 2004, SDN's counsel contacted the Commission's
International Bureau (``IB'') and disclosed that SDN failed
to timely renew the licenses for its three earth stations
and was operating without Commission authority.
Thereafter, on January 11, 2005, SDN requested special
temporary authority (``STA'') to continue operations and
filed an application to reinstate its licenses. IB granted
SDN's STA on February 14, 2005,4 and reinstated its
licenses on April 11, 2005.5
3. IB referred this case to the Enforcement Bureau
(``Bureau'') for investigation and possible enforcement
action. The Bureau's Spectrum Enforcement Division issued
SDN a letter of inquiry (``LOI'') on March 9, 2005,6 and a
follow-up LOI on August 18, 2005.7
4. In its responses,8 SDN admitted that it failed to
timely renew its earth station licenses and that it
continued to operate its stations without Commission
authority. According to SDN, it believed that its renewal
applications were timely filed and that its licenses
remained in effect.9 SDN claimed that it first became
aware that its station licenses expired in November of
2004.10 SDN also claimed that it took immediate steps to
retain counsel, consult with Commission staff, prepare and
file ``an application for licensing of its VSAT operations,
along with a request for special temporary authority to
operate pending action on its application for a new VSAT
license,'' and thereby bring its stations into compliance
with the Commission's licensing requirements.11
5. Section 301 of the Act and Section 25.102(a) of
the Rules prohibit the use or operation of any apparatus
for the transmission of energy or communications or signals
by an earth station except under and in accordance with a
Commission granted authorization. Section 25.121(c)
provides that the license term for an earth station is
specified in the instrument of authorization.12 Section
25.121(e) of the Rules requires the licensee of an earth
station to file its renewal application ``no earlier than
90 days, and no later than 30 days, before the expiration
date of the license.''13 Absent a timely filed renewal
application, an earth station license automatically
terminates at the end of the license period.14
6. As stated previously, SDN's authorizations
specified that the license terms would expire on March 23,
2000. SDN admitted that it failed to file its renewal
applications during the requisite 30-90 day period prior to
March 23, 2000. Moreover, SDN admitted that it continued
to operate these stations without Commission authority from
March 23, 2000 (when its licenses expired) until February
14, 2005 (when its STA was granted). Thus, it appears that
SDN violated Section 25.121(e) of the Rules by failing to
timely file renewal applications, and violated Section 301
of the Act and Section 25.102(a) of the Rules by continuing
to operate its stations without Commission authority.
7. Section 503(b) of the Act,15 and Section 1.80(a)
of the Rules,16 provide that any person who willfully or
repeatedly fails to comply with the provisions of the Act
or the Rules shall be liable for a forfeiture penalty. For
purposes of Section 503(b) of the Act, the term ``willful''
means that the violator knew that it was taking the action
in question, irrespective of any intent to violate the
Commission's rules, and ``repeatedly'' means more than
once.17 Based upon the record before us, it appears that
SDN's violations of Section 301 of the Act and Sections
25.102(a) and 25.121(e) of the Rules were willful and
8. In determining the appropriate forfeiture
amount, Section 503(b)(2)(D) of the Act directs us to
consider factors, such as ``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 require.''18 Having considered the statutory
factors, we find it appropriate to downwardly adjust the
proposed aggregate forfeiture from $22,500 to $19,000 based
on SDN's voluntary disclosure of its violations.
9. Section 1.80(b) of the Rules sets a base
forfeiture amount of ten thousand dollars ($10,000) for
operation of a station without Commission authority and
three thousand dollars ($3,000) for failure to file the
required forms or information (e.g., timely file a renewal
application).19 As the Commission recently held, a
licensee's failure to timely file a renewal application and
its continued operations without authorization constitute
separate violations of the Act and the Rules and warrant
the assessment of separate forfeitures.20 Accordingly, we
herein propose separate forfeiture amounts for SDN's
10. We propose a $18,000 forfeiture for SDN's
continued operations of its three earth stations beyond
March 23, 2000 ($6,000 for operating each station). In
proposing $6,000 for each station's unauthorized
operations, we recognize that the Commission considers a
licensee who operates a station with an expired license in
better stead than a pirate broadcaster who lacks prior
authority, and thus downwardly adjusts the $10,000 base
forfeiture amount accordingly.21 We also recognize that
the $6,000 proposed forfeiture amount is higher than those
assessed against other licensees who operated with expired
licenses.22 However, we believe that the circumstances
warrant a higher forfeiture amount, given that SDN's
unauthorized operations spanned almost a five-year period,
a significantly greater period than those presented in
other cases.23 The higher $6,000 forfeiture for each
station relates to SDN's apparent violations that occurred
within the past year, but takes into account that those
apparent violations were continuous in nature.24
Additionally, consistent with precedent,25 we propose a
$4,500 forfeiture for SDN's failure to file the renewal
applications for its three stations ($1,500 for each
failure to file) within the time period specified in
Section 25.121(e) of the Rules. Thus, we propose an
aggregate forfeiture of $22,500 ($18,000 for unauthorized
operation and $4,500 for failure to file timely renewal
11. We find that a downward adjustment of this
proposed aggregate forfeiture amount to $19,000 is
warranted because SDN made voluntary disclosures to
Commission staff without undue delay and undertook
corrective measures -- after learning of its violations,
but prior to any Commission inquiry or initiation of
enforcement action.26 We do not find, however, that SDN's
lack of awareness presents a mitigating factor warranting a
further downward adjustment. As a Commission licensee,
SDN's is charged with the responsibility for knowing and
complying with the terms of its authorizations, the Act and
the Rules, including the requirement to timely renew the
authorizations and maintain operating authority for its
three earth stations.27
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to
pursuant to Section 503(b) of the Act28 and Sections 0.111,
0.311 and 1.80 of the Rules,29 SDN IS hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of
nineteen thousand dollars ($19,000) for its apparent
willful and repeated violations of Section 301 of the Act
and Sections 25.102(a) and 25.121(e) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules,30 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, SDN
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
14. 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. Requests for payment of the
full amount of the NAL under an installment plan should be
sent to: Associate Managing Director - Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington,
15. 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.
16. 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; 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
17. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by first
class mail and certified mail return receipt requested to
Larry W. Jones, President and CEO, Shared Data Networks,
LLC, 11101 Nations Ford Road, Charlotte, NC 28270 and to
counsel for Shared Data Networks, Karis A. Hastings, Esq.,
Hogan & Hartson LLP, 555 Thirteenth Street, NW, Washington,
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
147 U.S.C. § 301.
247 C.F.R. §§ 25.102(a) and 25.121(e).
3See File Nos. SES-LIC-19891221-00072, SES-LIC-19891221-
00063, and SES-LIC-19891221-00064.
4See File No. SES-STA-20050111-00031 (granted February 14,
5See File No. SES-LIC-20050111-00030 (granted April 11,
6See Letter from Kathryn Berthot, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Larry W. Jones, President and
CEO, Shared Data Networks, LLC (March 9, 2005).
7See Letter from Kathryn Berthot, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Larry W. Jones, President and
CEO, Shared Data Networks, LLC (August 18, 2005).
8See Letter from Larry W. Jones, President and CEO, Shared
Data Networks, to Ava Holly Berland, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications
Commission (September 1, 2005) (``Follow-up Response'');
Letter from Larry W. Jones, President and CEO, Shared Data
Networks, to Ava Holly Berland, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications
Commission (March 22, 2005) (``Response'').
9See Further Response at 1; Response at 1.
10See Response at 2. .
11Id. at 2.
12See 47 C.F.R. § 25.121(c).
1347 C.F.R. § 25.121(e).
1447 C.F.R. § 25.161.
1547 U.S.C. § 503(b).
1647 C.F.R. § 1.80(a).
17See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991); see also WCS Communications, Inc., 13 FCC Rcd 6691
(WTB, Enf. and Consumer Info. Div. 1998) (finding that a
licensee's inadvertent failure to file timely renewal
applications, constitutes a repeated violation that
continues until the date the license is renewed).
1847 U.S.C. § 503(b)(2)(D). See also 47 C.F.R. §
1.80(b)(4), Note to paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures; The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17110 (1997), recon. denied
1947 C.F.R. 1.80(b).
20See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004)
(assessing a proposed forfeitures of $5,000 and $1,500
against a broadcaster who both operated its station for 14
months without Commission authority and failed to timely
file its renewal application).
21See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing
a $5,000 forfeiture for operating a station for 14 months
beyond the expiration of its license).
22Id. See also Verizon Southwest, Inc.¸ 16 FCC Rcd 2247
(Enf. Bur., Technical and Public Safety Div., 2001)
(proposing a $5,000 forfeiture for operating a station for
over 2 years beyond the expiration of its license).
24Section 503(b)(6) of the Act, 47 U.S.C. § 503(b)(6)
prohibits the assessment of a forfeiture for violations
that occurred more than a year prior to the NAL, but does
not bar us from taking into account the continuous nature
of violations in determining the appropriate enforcement
action and/or forfeiture amount. See, e.g., Globcom, Inc.
d/b/a Globcom Global Communications, 18 FCC Rcd 19893,
19903 ¶ 23 (2003), rev. pending; Roadrunner Transportation,
Inc., 15 FCC Rcd 9669, 9671-71 ¶ 8 (2000); Cate
Communications Corp., 60 RR 2d 1386, 1388 ¶ 7 (1986);
Eastern Broadcasting Corp., 10 FCC 2d 37, 37-38 ¶ 3 (1967);
Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445,
3447-48 ¶¶ 8-9 (Enf. Bur., Spectrum Enf. Div., 2005),
25See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing
a $1,500 forfeiture for failure to file a timely renewal
application for a broadcast station); see also Self
Communications, Inc., 15 FCC Rcd 18661, 18664-65 (WTB,
Public Safety and Private Wireless Div., 2000) (proposing a
$1,500 forfeiture for failure to file a timely renewal
application for a 218-219 MHz service); Vincent
Communications, Inc., 15 FCC Rcd 8432 (WTB, Enf. and
Consumer Info. Div., 1999) (proposing an aggregate $4,500
forfeiture for failure to timely renewal applications for
three paging stations), forfeiture ordered, 15 FCC Rcd
18263 (Enf. Bur. 2000); Snider Communications Corp., 14 FCC
Rcd 20047, 20048 (WTB, Enf. and Consumer Info. Div., 1999)
(proposing an aggregate $21,000 forfeiture for failure to
file timely renewal applications for 14 paging stations).
See also American Paging, supra (imposing separate
forfeitures for the unauthorized operation of two
26See, e.g., Radio One Licenses, Inc., 18 FCC Rcd 15964,
15965 ¶ 4 (2003), recon. denied, 18 FCC Rcd 25481 (2003);
Emery Telephone, 13 FCC Rcd 23854, 23858 (1998), recon.
denied , 15 FCC Rcd 7181 (1999); Petracom of Texarkana,
LLC, 19 FCC Rcd 8096, 8097-98 ¶¶ 5-6 (Enf. Bur. 2004);
American Family Association, 17 FCC Rcd 181135, 18137 (Enf.
Bur. 2002), recon. denied, 18 FCC Rcd 2413 (Enf. Bur.
2003); but see American Paging, Inc., 12 FCC Rcd 10417,
10420 (WTB, Enf. and Consumer Info. Div., 1997) (finding
that the mitigating effect of voluntary disclosure was
abrogated by the licensee's delay).
27See Discussion Radio, 19 FCC Rcd 7433, 7437 (2004);
William S. Mills, 15 FCC Rcd 20071, 20072 (Enf. Bur. 2000);
see also Peacock's Radio and Wild's Computer Service, Inc.,
16 FCC Rcd 15016, 15017 (2001).
2847 U.S.C. § 503(b).
2947 C.F.R. § 0.111, 0.311 and 1.80.
3047 C.F.R. § 1.80.
31See 47 C.F.R. § 1.1914.