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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File Number: EB-04-SD-187
Kojo Worldwide Corporation NAL/Acct. No.: 200532940005
San Diego, California FRN: 0011163516
Adopted: August 23, 2006 Released: August 25, 2006
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Kojo Worldwide
Corporation ("Kojo") for willful and repeated violation of Section 301
of the Communications Act of 1934, as amended ("Act"). On September
28, 2005, the Enforcement Bureau's San Diego Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Kojo after determining that Kojo apparently willfully and repeatedly
operated an unlicensed microwave radio station on microwave channels
22355.0 MHz and 22471.75 MHz in San Diego, California. In this Order,
we consider Kojo's argument that Commission staff had assured
"similarly situated" microwave operators, and Kojo, by association,
that the Commission would not take enforcement action against them.
2. On November 18, 2004, an agent from the Commission's San Diego Office
was investigating allegations that companies in the Otay Mesa area of
San Diego were using unauthorized microwave radio stations to
communicate with sister companies across the U.S. - Mexico border in
Tijuana, Mexico. The agent monitored and measured the transmissions of
a microwave radio station operated at the offices of Kojo Worldwide
Corporation, at 9654 Siempre Viva Road, San Diego, California. The
frequency measurement showed that this microwave radio station was
operating on microwave channel 22355.0 MHz. At this time, the agent
conducted an inspection of the radio station with the Kojo staff. The
agent requested a copy of Kojo's station authorization for its
microwave radio station, but none could be produced.
3. On December 1, 2004, and December 2, 2004, the San Diego agent
returned to the Kojo site and again measured the microwave radio
station operating on the microwave channel 22355.0 MHz. No inspection
was attempted on either day.
4. A review of the Commission's database revealed that Kojo had no
authorization to operate a point-to-point microwave radio station at
9654 Siempre Viva Road. The review showed that Kojo did have a pending
application for license, filed November 1, 2004, for operation on
22471.75 MHz for this transmitter site ("2004 Application"). Kojo
previously submitted three applications for microwave radio stations
in 2001. However, all three applications were dismissed in 2001 for
failing to submit the required application filing fee. In each of the
dismissal letters, Kojo was cautioned that "[i]f you are currently
operating under authority provided by the Commission's Rules based on
your submission of the above referenced application, you must
immediately cease operation until such time as you come into
compliance with the Rules."
5. On December 17, 2004, the San Diego Office sent a Notice of Unlicensed
Operation ("NOUO") to Kojo concerning its unauthorized operation on
22355.57 MHz, in violation of Section 301 of the Act. The San Diego
Office received a reply to the NOUO from Kojo's attorney on December
6. In this reply, the attorney stated that Kojo attempted to apply for a
microwave radio station in 2001. During this same time period, the
attorney had another client who attempted to apply for a microwave
radio station in the same area in order to communicate with a sister
office in Mexico. According to the attorney, this other client
attempted to obtain a special temporary authority ("STA") but was not
granted one. The attorney stated that he was informed by the
Commission's International Bureau that "(1) it would not be issuing
any more STA's, and (2) there would be no further enforcement actions
initiated by field offices regarding unlicensed cross-border 23 GHz
systems." The attorney then stated that he gave this advice to Kojo as
well. Upon receiving the NOUO, the attorney stated that Kojo ceased
operation of the microwave radio station in question and filed for
special temporary authority ("2004 STA Request") to allow its
7. On March 24, 2005, and on August 9, 2005, San Diego agents returned to
the Kojo site and found the microwave radio station operational but
now on microwave channel 22471.75 MHz, the frequency specified in
their 2004 Application. On August 18, 2005, the pending Kojo
application for a Private Operational Fixed Point-to-Point Microwave
radio station on 22471.75 MHz, located at 9654 Siempre Viva Road, San
Diego, California, was granted under call sign WQDG466.
8. On September 28, 2005, the San Diego Office issued a NAL in the amount
of $10,000 to Kojo. In the NAL, the San Diego Office found that Kojo
apparently willfully and repeatedly violated Section 301 of the Act
by operating an unlicensed microwave radio station on microwave
channels 22355.0 MHz and 22471.75 MHz in San Diego, California. Kojo
filed a response to the NAL on October 28, 2005 ("Response"). In this
Response, Kojo reiterates its response to the NOUO and argues that
"similarly situated" microwave operators had been assured by staff
from the Commission's International Bureau, in 2001, that the
International Bureau would no longer grant STA's to cross border
microwave operators, such as Kojo, but that no enforcement action
would be taken against these operators either. Kojo argues that its
operations in 2004 and 2005, which are the basis of the San Diego
Office's NAL, were done in reliance on this advice and therefore the
proposed forfeiture should be cancelled. Kojo attaches affidavits from
its counsel and consulting engineer detailing what they were told by
International Bureau staff in 2001.
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the 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.
10. Section 301 of the Act requires 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. On November 18, 2004,
December 1, 2004, and December 2, 2004, measurements made by San Diego
agents revealed that Kojo was operating a microwave radio station on
microwave channel 22355.0 MHz. On March 24, 2005, and August 9, 2005,
measurements made by San Diego agents revealed that Kojo was operating
a microwave radio station on microwave channel 22471.75 MHz. A review
of Commission records indicated that Kojo had no authorization to
operate on microwave channel 22355.0.MHz. The review also indicated
that Kojo had a pending application, filed November 1, 2004, but no
authorization, to operate on microwave channel 22471.75 MHz until
August 18, 2005.
11. In its Response, Kojo does not claim that it held a valid
authorization to operate its microwave station during the 2004 and
2005 time period detailed in the NAL. Indeed, Kojo does not deny
operating repeatedly without a license. Kojo also does not deny it
changed operations to another unlicensed frequency, and does not
explain its actions. Further, Kojo also does not discuss its November
1, 2004 application, or why it was filed. Instead, Kojo argues that it
should not be liable for a forfeiture because it was relying on oral
advice given to its counsel by Commission staff in 2001, concerning
other similarly situated microwave operators.
12. The Commission has consistently held that applicants are responsible
for compliance with the Commission's Rules and that they should not
rely on informal oral opinions from Commission staff. However,
assuming arguendo that Commission staff did advise Kojo's counsel in
2001 that there would be no further enforcement actions initiated by
field offices regarding unlicensed cross-border 23 GHz systems in
2001, we agree with the San Diego Office's determination that Kojo's
continued reliance on this advice in 2004 and 2005 was misplaced. Kojo
argues that in 2001, and "[u]ntil 2005, the FCC's microwave licensing
branch had steadfastly refused to grant applications seeking
cross-border 23 GHz links because the licensing authority in Mexico
was not then issuing authorizations for parallel links from Mexico to
the U.S." A review of the Commission's database shows that Kojo is
mistaken. By January 2004, cross-border coordination and licensing by
both the FCC and the Mexican Ministry of Communications and Transport
("SCT") was routinely occurring. Indeed, Kojo filed an application for
authority to operate in 2004. Therefore, Kojo clearly understood that
licensing was both required, and available, for its cross-border
operations in 2004 and 2005, the period during which the San Diego
Office agents observed and questioned Kojo's unauthorized operations.
Additionally, on December 17, 2004, Kojo was warned in writing by the
San Diego Office that its operation was in violation of Section 301 of
the Act and that Kojo was subject to various penalties pursuant to the
Communications Act. Kojo's continued unlicensed microwave operation,
even after it had given written assurances to the San Diego Office
that it had ceased its illegal operation, belies its argument of
reliance on oral advice received by Commission staff in 2001.
Therefore, we find no merit to Kojo's argument.
13. We have examined the 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 Kojo willfully
and repeatedly violated Section 301 of the Act. Considering the entire
record and the factors listed above, we find that neither reduction
nor cancellation of the proposed $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Kojo Worldwide
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$10,000 for willfully and repeatedly violating Section 301 of the Act.
15. 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. 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 full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Kojo
Worldwide Corporation, at its address of record, and its counsel of
record, Frederick J. Day, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 U.S.C. S 301.
47 C.F.R. S 101.147(s).
See File No. 0001919664.
See File No. 0000432307, dismissed for failure to pay required fee, June
8, 2001; File No. 0000477582, dismissed for failure to pay required fee,
June 19, 2001; and File No. 00000506891, dismissed for failure to pay
required fee, July 18, 2001.
22355.57 MHz is within the maximum allowable tolerance of microwave
channel 22355.0 MHz. See 47 C.F.R. S 101.147(s).
We note that the attorney indicates that this advice was given orally and
nothing was given to him in writing.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940005
(Enf. Bur., Western Region, San Diego Office, released September 28,
47 C.F.R. S 101.147(s).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301.
Pursuant to Sections 101.31(b)(1) and 101.31 (b)(1)(v) of the Rules, 47
C.F.R. SS 101.31(b)(1), 101.31(b)(1)(v), certain applicants for
point-to-point microwave stations, not located within 56.3 kilometers of
any international border, operating in certain frequency bands, are deemed
to have conditional authority to operate their proposed stations during
the pendency of their applications. The frequency proposed for use by
Kojo in its applications is not contained in these frequency bands. Also,
Kojo's station is located approximately 0.75 km from the Mexican border.
Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom. Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1666
Federal Communications Commission DA 06-1666