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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
National Weather Networks, Inc. ) File No. EB-06-SE-051
Ku-Band FSS Earth Station, Call ) NAL/Acct. No. 200632100008
Sign E910651 ) FRN # 0014509491
Jackson, Mississippi )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 12, 2006 Released: April 14,
By the Chief, Spectrum Enforcement Division, Enforcement
1. In this Notice of Apparent Liability for
Forfeiture, we find National Weather Networks, Inc.
(``NWN''), licensee of Ku-Band FSS earth station, E910651
(or ``earth station''), Jackson, Mississippi, apparently
liable for a forfeiture in the amount of five thousand
dollars ($5,000) for operating without Commission authority
in apparent willful and repeated violation of Section 301
of the Communications Act of 1934, as amended (``Act''),1
and Section 25.102(a) of the Commission's Rules
(``Rules''),2 and failing to file a timely renewal
application for its earth station in apparent willful and
repeated violation of Section 25.121(e) of the Rules.3
2. NWN provides customized local weather reports via
satellite uplink to television stations in small and mid-
sized markets nationally. NWN's earth station
authorization specified a license term that commenced on
November 8, 1991, and expired on November 8, 2001.4 On
January 10, 2006, NWN notified the International Bureau of
its failure to timely renew its earth station license and
submitted an Application for Earth Station Special
Temporary Authority (``STA Request'') in order to continue
operations.5 The International Bureau granted the STA
Request the next day.6 Also on January 10, 2006, NWN
submitted an Application for Earth Station Authorizations
(``license application'') in place of a license renewal
form, requesting permission to replace the earth station's
former authorization.7 The International Bureau granted
NWN a new earth station license on February 21, 2006.8
3. The International Bureau referred this case to the
Enforcement Bureau for investigation and possible
enforcement action. The Enforcement Bureau's Spectrum
Enforcement Division issued NWN a letter of inquiry
(``LOI'') on February 15, 2006.9
4. In its March 1, 2006, response to the LOI
(``Response''), NWN admitted that it failed to timely renew
its earth station license.10 NWN also previously
acknowledged in its STA Request that it had continuously
operated its earth station without Commission authority
since November 8, 2001 (the expiration date of the earth
station license).11 NWN requested that the Commission take
the following mitigating factors into account in
determining whether to issue a forfeiture. First, NWN
stated that in January of 2006 when it first became aware
that its earth station license had expired, it immediately
instructed counsel to contact the International Bureau
staff to disclose that it was operating without Commission
authority and to ``file the necessary applications to bring
NWN's earth station into full compliance with the FCC's
rules.'' 12 NWN also claimed that (a) it had a history of
compliance; (b) the violation was ``negligent but not
willful'' because NWN's administrator was not aware that
the license needed to be renewed and the President was not
aware that NWN had failed to file a renewal application;
(c) it was not aware of any instance where NWN's ``use of
the earth station violated the FCC's safety rules, caused
interference or disrupted other users''; and (d) it was a
small company ``without great financial resources.''13
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.14 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.''15 Absent a timely filed renewal
application, an earth station license automatically
terminates at the end of the license period.16
6. As stated previously, NWN's authorization
specified that the license term would expire on November 8,
2001. NWN admitted that it had failed to timely file its
renewal application. Moreover, NWN admitted that it
continued to operate the earth station for over four years
without Commission authority - from November 8, 2001 to
January 11, 2006. Thus, it appears that NWN violated
Section 25.121(e) of the Rules by failing to timely file a
renewal application, and violated Section 301 of the Act
and Section 25.102(a) of the Rules by continuing to operate
its station without Commission authority.
7. Section 503(b) of the Act,17 and Section 1.80(a)
of the Rules,18 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.19 Based upon the record before us, it appears that
NWN'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.''20 Having considered the statutory
factors as well as NWN's Response, we find it appropriate
to downwardly adjust the proposed aggregate forfeiture from
$7,500 to $5,000 - as discussed below - based on NWN's
history of compliance and prompt and voluntary disclosure
of its violations.
9. Section 1.80(b) of the Rules21 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., failure to timely file
a renewal application).22 As the Commission recently held,
a licensee's failure to timely file a renewal application
and its continued operation without authorization
constitute separate violations of the Act and the rules and
warrant the assessment of separate forfeitures.23
Accordingly, we herein propose separate forfeiture amounts
for NWN's separate violations.
10. We propose a forfeiture of $6,000 for NWN's
continued operation of its earth station beyond November 8,
2001. In proposing $6,000 for the 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.24 Consistent with recent
precedent,25 the proposed $6,000 forfeiture amount takes
into account the fact that NWN's unauthorized operations
spanned over four years - from November 8, 2001 to January
22, 2006. The $6,000 forfeiture relates to NWN's apparent
violations that occurred within the past year, but takes
into account that those apparent violations were continuous
in nature.26 Additionally, consistent with precedent,27 we
propose a $1,500 forfeiture for NWN's failure to file a
renewal application for its station within the time period
specified in Section 25.121(e) of the Rules. Thus, we
propose an aggregate forfeiture of $7,500 ($6,000 for
unauthorized operations and $1,500 for failure to timely
file a renewal application).
11. In its Response, NWN sets forth a number of
mitigating factors in support of reduction of the
forfeiture amount. NWN asserts, and a search of Commission
records confirms, that the company has a history of
compliance with the rules.28 We also find that NWN
voluntarily disclosed to International Bureau staff that it
was operating without Commission authority and took
corrective measures to comply with the rules without undue
delay, after learning of its violation, but prior to any
Commission inquiry or initiation of enforcement action.29
Accordingly, we downwardly adjust the proposed aggregate
forfeiture amount to $5,000.
12. NWN also contends that its violation of the
Commission's rules was ``negligent but not willful.'' In
support, NWN explains that its administrator was not aware
that the license needed to be renewed and the President was
not aware that NWN failed to file a renewal application.
As an initial matter, negligence does not mitigate a
Commission rule violation. It is well-settled that
neither the negligent acts or omissions of station
employees or agents, nor the subsequent remedial actions
undertaken by the licensee, excuse or nullify a licensee's
rule violation.30 As a Commission licensee, NWN 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 authorization
and maintain operating authority for its earth station.31
Moreover, as previously discussed, in the context of a
forfeiture setting, ``willful'' does not require a finding
that the rule violation was intentional or that the
violator was aware that it was committing a rule
violation.32 Rather, the term ``willful'' simply requires
that the violator knew it was taking the action in
question, irrespective of any intent to violate the
Commission's rules. Accordingly, NWN willfully violated
Section 301 of the Act and Sections 25.102(a) and 25.121(e)
of the Rules.
13. NWN additionally purports that it was not aware of
any instance where its ``use of the earth station violated
the FCC's safety rules, caused interference or disrupted
other users.'' It is well established that the absence of
public harm is not considered a mitigating factor of a rule
violation and does not warrant a downward adjustment of a
14. Finally, NWN asserts that it is a small company
``without great financial resources.''34 To the extent
that it claims an inability to pay a forfeiture, we note
that NWN did not submit any supporting financial
documentation (i.e., federal tax returns, financial
statements, or other reliable, objective information
reflecting financial status).35 Accordingly, we have no
basis by which to evaluate NWN's inability to pay claim.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to
pursuant to Section 503(b) of the Act36 and Sections 0.111,
0.311 and 1.80 of the Rules,37 NWN IS hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of
five thousand dollars ($5,000) 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.
16. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules,38 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, NWN
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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, D.C. 20554.39
18. 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.
19. 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
20. 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
Edward St. Pe, President, National Weather Networks, Inc.,
916 Foley Street, Jackson, Mississippi 39202 and to counsel
for National Weather Networks, Inc., Arthur V. Belendiuk,
Esq., Smithwick & Belendiuk, PC, 5028 Wisconsin Ave, NW,
Suite 301, Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
1 47 U.S.C. § 301.
2 47 C.F.R. § 25.102(a).
3 47 C.F.R. § 25.121(e).
4 See File No. SES-LIC-19910919-00663.
5 See File No. SES-STA-20060110-00025 (January 10, 2006).
6 The International Bureau granted the STA Request for
sixty (60) days, without prejudice to any future
enforcement action against the company in connection with
unauthorized operation of its radio facilities. See Grant
of Authority for Application for Earth Station Special
Temporary Authority, File No. SES-STA-20060110-00025.
7 In its license application, NWN sought, among other
things, to transmit digital video, audio and data services
on two separate frequency bands (11700 - 12200 MHz and
14000 - 14500 MHz). See File No. SES-LIC-20060110-00024.
The application was placed on public notice on January 18,
2006. See Public Notice, Report No. SES-0075 (Jan. 18,
8 See File No. SES-LIC-20060110-00024 (granted February 21,
9 See Letter from Kathryn Berthot, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Arthur V. Belendiuk, Esq,
Counsel for Mr. Edward St. Pe', President, National Weather
Networks, Inc. (February 15, 2006).
10 See Letter from Arthur V. Belendiuk, Esq., to Jennifer
Burton, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (March 1, 2006)
11 See STA Request, Attachment 1.
12 See Declaration of Mr. St. Pe'.
13 See Response at 2.
14 47 C.F.R. § 25.121(c).
15 47 C.F.R. § 25.121(e).
16 47 C.F.R. § 25.161.
17 47 U.S.C. § 503(b).
18 47 C.F.R. § 1.80(a).
19 Section 312(f)(1) of the Act defines "willful" as "the
conscious and deliberate commission or omission of [any]
act, irrespective of any intent to violate" the law. 47
U.S.C. § 312(f)(1). The legislative history of Section
312(f)(1) of the Act clarifies that this definition of
willful applies to both Sections 312 and 503(b) of the Act,
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and
the Commission has so interpreted the term in the Section
503(b) context. See, e.g., Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4388 n.5 (1991)
(``Southern California''), recon. denied, 7 FCC Rcd 3454,
3455 (1992). The term "repeated" means that the act was
committed or omitted more than once, or lasts more than one
day. Callais Cablevision, Inc., 16 FCC Rcd 1359, 1362 n.9
(2001); Southern California, 6 FCC Rcd at 4388 n.5.
20 47 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,
15 FCC Rcd. 303 (1999).
21 47 C.F.R. § 1.80(b).
22 47 C.F.R. 1.80(b).
23 See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004)
(``Discussion Radio'') (assessing a proposed forfeiture 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).
24 See Discussion Radio, 19 FCC Rcd at 7438 (proposing a
$5,000 forfeiture for operating a station for 14 months
beyond the expiration of its license); Shared Data
Networks, LLC, 20 FCC Rcd 18184, 18186-18187 (Enf. Bur.,
Spectrum Enf. Div., 2005) (``Shared Data'') (proposing an
$18,000 forfeiture - $6,000 per earth station - for
unauthorized operation over a period of 5 years); Journal
Broadcast Corporation, 20 FCC Rcd 18211, 18213 (Enf. Bur.,
Spectrum Enf. Div., 2005) (``Journal Broadcast'')
(proposing a $5,000 forfeiture for unauthorized operation
for 1 year).
25 See Shared Data, 20 FCC Rcd at 18187 (proposing an
aggregate forfeiture amount of $18,000 for operating 3
earth stations for almost 5 years without Commission
authority ($6,000 each)).
26 Section 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); Roadrunner Transportation, Inc., 15 FCC
Rcd 9669, 9671-72 ¶ 8 (2000); Cate Communications Corp., 60
RR 2d 1386, 1388 ¶ 7 (1986); Eastern Broadcasting Corp., 10
FCC 2d 37, 37-38 ¶ 3 (1967), recon. denied, 11 FCC 2d 193,
195 ¶ 9 (1967); Bureau D'Electronique Appliquee, Inc., 20
FCC Rcd 3445, 3447-48 ¶¶ 8-9 (Enf. Bur., Spectrum Enf.
Div., 2005), forfeiture ordered, 20 FCC Rcd 17893 (Enf.
Bur., Spectrum Enf. Div., 2005).
27 See Discussion Radio, 19 FCC Rcd at 7438 (proposing a
$1,500 forfeiture for failure to timely file a renewal
application for a broadcast station); Shared Data, 20 FCC
Rcd at 18187 (proposing an aggregate forfeiture amount of
$4,500 for failure to timely file renewal applications for
3 earth stations); Journal Broadcast, 20 FCC Rcd at 18213)
(proposing a $1,500 forfeiture for failure to timely file a
renewal application for an earth station); 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 timely file a 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 file renewal applications
for 3 paging stations), forfeiture ordered, 15 FCC Rcd
18263 (Enf. Bur. 2000).
28 See Response at 2.
29 See, 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); Shared Data, 20 FCC Rcd at
18187; Petracom of Texarkana, LLC, 19 FCC Rcd 8096, 8097-98
¶¶ 5-6 (Enf. Bur. 2004); American Family Association, 17
FCC Rcd 18135, 18137 (Enf. Bur. 2002), recon. denied, 18
FCC Rcd 2413 (Enf. Bur. 2003); but see Journal Broadcast,
20 FCC Rcd at 18213 (mitigating effect of voluntary
disclosure was abrogated by licensee delay); American
Paging, Inc., 12 FCC Rcd 10417, 10420 (WTB, Enf. and
Consumer Info. Div., 1997) (mitigating effect of voluntary
disclosure was abrogated by licensee delay).
30 See Padre Serra Communications, Inc., 14 FCC Rcd 9709
(1999) (citing Gaffney Broadcasting, Inc., 23 FCC 2d 912,
913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706
(1962)); Surrey Range Limited Partnership, 71 RR 2d 882
31 See Discussion Radio, 19 FCC Rcd at 7437; Shared Data,
20 FCC Rcd at 18187-88; Journal Broadcast, 20 FCC Rcd at
18214; 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).
32 See n.18, supra.
33 Pacific Western Broadcasters, Inc., 50 FCC 2d 819 ¶ 4
(1975) (rejecting a broadcaster's claim that the forfeiture
should be downwardly adjusted because its operations at
excessive power levels did not cause public harm or
complaint, stating that ``[t]he Commission not only is
concerned with actual interference, but is concerned with
the potential for interference''); AGM-Nevada, LLC, 18 FCC
Rcd 1476, 1478-79 ¶ 8 (Enf. Bur. 2003) (rejecting a
licensee's claim that the forfeiture should be downwardly
adjusted because even though it operated booster stations
at unauthorized sites with excessive power levels, its
operations did not result in interference).
34 See Response at 2.
35 See infra, para. 19.
36 47 U.S.C. § 503(b).
37 47 C.F.R. § 0.111, 0.311 and 1.80.
38 47 C.F.R. § 1.80.
39 See 47 C.F.R. § 1.1914.