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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-SE-050
Criswell College ) NAL/Acct. No. 200632100013
Dallas, Texas ) FRN # 0008702540
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 8, 2006 Released: May 11, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find Criswell
College ("Criswell"), former licensee of satellite earth station,
E940272, Dallas, Texas, apparently liable for forfeiture in the amount
of four thousand dollars ($4,000) for operating its earth station
without Commission authority and for failing to timely file a renewal
application. Criswell acted in apparent willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended, ("Act")
and Sections 25.102(a) and 25.121(e) of the Commission's Rules
2. Criswell was granted a license for its fixed-satellite service earth
station, E940272, on June 24, 1994, with an expiration date of June
24, 2004. On December 7, 2005, Criswell filed with the Commission's
International Bureau an application for a new earth station license.
On December 8, 2005 Criswell filed a request for special temporary
authority ("STA") to continue operating its earth station pending
Commission action on the license application. The International Bureau
granted Criswell's STA on December 13, 2005, and granted Criswell a
new earth station license, call sign E050379, on January 17, 2006.
3. Because it appeared that Criswell may have operated the earth station
after the expiration of its license, the International Bureau referred
this case to the Enforcement Bureau for investigation and possible
enforcement action. On February 27, 2006, the Enforcement Bureau's
Spectrum Enforcement Division issued a letter of inquiry ("LOI") to
4. In its April 7, 2006 response to the LOI, Criswell stated that it
first became aware that its earth station license E940272 may have
expired on December 5, 2005. Citing an "inadvertent error" as the
basis for its failure to timely renew its license, Criswell explained
that once it discovered the expiration of its license, it filed for a
new earth station license on December 7, 2005 and an STA on December
8, 2005. Further, Criswell admitted that it continued to operate its
earth station beyond the license expiration date without Commission
authorization. Specifically, Criswell explained that it mistakenly
believed its license for expired E940272 was in effect for a term of
fifteen years not ten.
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. Additionally,
Section 25.121(e) of the Rules requires that licensees file renewal
applications for earth stations "no earlier than 90 days, and no later
than 30 days, before the expiration of the license." Absent a timely
filed renewal application, an earth station license automatically
6. As a Commission licensee, Criswell was required to maintain its
authorization in order to operate its earth station. Based upon the
information before us, Criswell operated the earth station without
Commission authority from the station's license expiration date of
June 24, 2004, until the STA grant date of December 13, 2005. By
operating its earth station for approximately eighteen months without
an instrument of authorization, Criswell apparently violated Section
301 of the Act and Section 25.102(a) of the Rules. Criswell also acted
in apparent violation of Section 25.121(e) of the Rules by filing its
license renewal application on December 7, 2005, more than eighteen
months beyond the 30-day requirement prescribed by the Rules.
1. Section 503(b) of the Act, and Section 1.80(a) of the Rules, 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. Based upon the record
before us, it appears that Criswell's violations of Section 301 of the
Act and Sections 25.102(a) and 25.121(e) of the Rules were willful and
2. 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." Having considered the statutory factors, as explained below,
we find it appropriate to downwardly adjust the proposed aggregate
forfeiture from $6,500 to $4,000 based upon Criswell's voluntary
disclosure of its violations and its history of compliance.
3. In its response to the LOI, Criswell argues that it only committed one
violation: failure to timely file its renewal application. We
disagree. In Discussion Radio, the licensee was sanctioned both for
failing to timely file a license renewal application and for operating
its station without authorization for the time between the expiration
of the license and the untimely renewal filing. Thus, Criswell'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.
4. Further, we are not persuaded by Criswell's reliance upon Section 558
of the Administrative Procedure Act to support its assertion that one
violation occurred. The portion of Section 558 to which Criswell cites
provides that "[w]hen the licensee has made timely and sufficient
application for a renewal or a new license in accordance with agency
rules, a license with reference to an activity of a continuing nature
does not expire until the application has been finally determined by
the agency." Section 558 is premised upon the presumption that a
required application is actually timely filed. Without a timely filed
application, one does not get the benefit afforded by Section 558.
Clearly, Criswell did not file its renewal application on time. Thus,
there is no presumption of authorization to continue to operate until
the Commission determines otherwise. Moreover, nothing in Section 558
addresses Criswell's assertion that failing to file a timely renewal
application and operating after the license has expired results in the
commission of only one violation and we do not believe Section 558
supports such a position.
5. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information and ten thousand dollars ($10,000) for operation of a
station without Commission authority. Consistent with precedent, we
propose a $1,500 forfeiture for Criswell's failure to file the renewal
application for its earth station within the time period specified in
Section 25.121(e) of the Rules. Additionally, we propose a $5,000
forfeiture for Criswell's continued operation of its earth station
beyond June 24, 2004. In proposing a $5,000 forfeiture for Criswell'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 adjust the $10,000 base forfeiture amount accordingly.
Thus, we propose an aggregate forfeiture of $6,500.
6. As a Commission licensee, Criswell is charged with the responsibility
of knowing and complying with the terms of its authorizations, the Act
and the Rules, including the requirement to timely renew the
authorization for its earth station. We do find, however, that a
downward adjustment of the proposed aggregate forfeiture from $6,500
to $4,000 is warranted because Criswell made voluntary disclosures to
Commission staff and undertook corrective measures after learning of
its violations, but prior to any Commission inquiry or initiation of
enforcement action and because of Criswell's history of overall
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Criswell IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of four thousand ($4,000) for the willful and repeated
violation of Section 301 of the Act and Sections 25.102(a) and
25.121(e) of the Rules.
8. 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, Criswell SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. 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. A request for
full payment under an installment plan should be sent to: Associate
Managing Director-Financial Operations, 445 12^th Street, S.W., Room
1-A625, Washington, D.C. 20554.
10. 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.
11. 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
12. 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 Douglas E. Price, Vice President for
Operations, Criswell College, Box 619000, Dallas, Texas 57261 and to
its counsel, Midlen Law Center, 7618 Lynn, Chevy Chase, MD 20815.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
47 U.S.C. S 301.
47 C.F.R. SS 25.102(a) and 25.121(e).
See File No. SES-STA-20051208-01726 (granted December 13, 2005).
See File No. SES-LIC-2005012070-01710 (granted January 17, 2006). The new
license for earth station E050379 was granted by the International Bureau
without prejudice to any future FCC enforcement action against the company
in connection with unauthorized operation of its radio facilities.
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Dr.
Ronald L. Harris, Executive Vice President/General Manager, Criswell
College (February 27, 2006).
See Letter from Douglas E. Price, Vice President for Operations, Criswell
College to Jacqueline Ellington, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (April 7, 2006).
Id. at 1.
Id. at 2.
Id. at 1.
Id. at 1.
Id. at 2.
47 C.F.R. S 25.121(e).
47 C.F.R. S 25.161(b).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See 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).
47 U.S.C. S 503(b)(2)(D). See also 47 C.F.R. S 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 (1999).
See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004) (assessing
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).
See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004). We note that,
although Criswell asserts that the full Commission has not tested this
approach of assessing two separate forfeitures for these violations,
Discussion Radio was a Commission decision.
5 U.S.C. S 558.
47 C.F.R. 1.80(b).
See 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 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 instead of a $10,000 forfeiture).
See Discussion Radio, 19 FCC Rcd at 7437; 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).
See, e.g., Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 P 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 PP 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 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
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311 and 1.80.
47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-996
Federal Communications Commission DA 06-996