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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
DirecTV Enterprises, LLC ) File No. EB-06-SE-202
Satellite Earth Station, Call Sign ) NAL/Acct. No. 200732100019
) FRN: 0003779329
El Segundo, CA
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 27, 2007 Released: March 29, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find DirecTV
Enterprises, LLC ("DirecTV"), licensee of satellite earth station,
call sign E950349, El Segundo, California, apparently liable for
forfeiture in the amount of ten thousand, four hundred dollars
($10,400) for operating its earth station without Commission authority
and for failing to file a timely renewal application. DirecTV 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 ("Rules").
2. DirecTV's license for its Ku-band fixed satellite service earth
station, call sign E950349, expired on October 27, 2005. On April 27,
2006, counsel for DirecTV indicated to International Bureau staff that
the license for the earth station was not renewed prior to its
expiration date. On May 1, 2006, DirecTV filed a request for special
temporary authority ("STA") to operate the earth station pending grant
of an application for a new earth station license. The International
Bureau granted DirecTV's STA request on May 2, 2006, but rescinded the
grant on May 3, 2006, and dismissed the STA request as defective on
May 5, 2006. On the same day, May 5, 2006, DirecTV filed another STA
request, which the International Bureau granted on May 18, 2006
3. Because it appeared that DirecTV may have operated the earth station
without authority after expiration of its license, the International
Bureau referred this case to the Enforcement Bureau for investigation
and possible enforcement action. On November 9, 2006, the Enforcement
Bureau's Spectrum Enforcement Division ("Division") issued a letter of
inquiry ("LOI") to DirecTV.
4. In its December 22, 2006 response to the LOI, DirecTV states that it
first became aware "on or about April 27, 2006" that its license for
earth station E950349 had expired. DirecTV acknowledges that it
operated earth station E950349 without authority from October 27, 2005
to May 2, 2006 when the International Bureau granted an STA. DirecTV
asserted that once it realized that its license for earth station
E950349 had expired, it initiated steps to apply for an STA to
continue operating its earth station pending Commission action on a
new license application. The International Bureau granted its
application for a new license on August 25, 2006.
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."
6. As a Commission licensee, DirecTV was required to timely renew its
authorization in order to operate its earth station. DirecTV concedes
that it has operated earth station E950349 without Commission
authorization from October 27, 2005, to May 2, 2006. By operating its
earth station for approximately six months without authorization,
DirecTV apparently violated Section 301 of the Act and Section
25.102(a) of the Rules. DirecTV also apparently violated Section
25.121(e) of the Rules by allowing its license to lapse without
7. 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 DirecTV'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)(E)
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 propose a forfeiture of $10,400.
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 required forms or information. 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
10. We propose a forfeiture in the amount of $5,000 for DirecTV's
unauthorized operation of its earth station E950349 after October 27,
2005. In proposing this forfeiture amount, we recognize that the
Commission considers a licensee who operates a station with an expired
authorization in better stead than a pirate broadcaster who lacks
prior authority, and thus downwardly adjust the $10,000 base
forfeiture amount accordingly. Consistent with precedent, we also
propose a forfeiture in the amount of $1,500 for DirecTV's failure to
file a renewal application for its earth station within the time
period specified in Section 25.121(e) of the Rules. Thus, we propose
an aggregate forfeiture amount of $6,500 ($5,000 for unauthorized
operation and $1,500 for failure to file a timely renewal
11. The $6,500 base forfeiture amount is subject to adjustment, however.
In this regard, we consider DirecTV's size and ability to pay a
forfeiture. To ensure that forfeiture liability is a deterrent, and
not simply a cost of doing business, the Commission has determined
that large or highly profitable companies, such as DirecTV, could
expect the assessment of higher forfeitures for violations. Given
DirecTV's size and ability to pay a forfeiture, we conclude that an
upward adjustment of the base amount to $13,000 is appropriate.
12. DirecTV claims that renewal of its earth station was the
responsibility of its Latin America operations and was "managed by a
separate arm of the company." Thus, DirecTV explains, timely renewal
of earth station E950349 "slipped through the cracks." As a Commission
licensee, DirecTV 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. DirecTV also states that no interference occurred
during its operation of its earth station. It is well established that
the absence of public harm is not considered a mitigating factor for a
rule violation. We do find, however, that a downward adjustment of the
proposed forfeiture from $13,000 to $10,400 is warranted because
DirecTV 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.
IV. ordering clauses
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, DirecTV IS hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of ten
thousand, four hundred dollars ($10,400) for the willful and repeated
violation of Section 301 of the Act and Sections 25.102(a) and
25.121(e) of the Rules.
14. 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, DirecTV SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. 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. Request for full payment of the NAL
amount 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.
16. 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.
17. 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
18. 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 William M. Wiltshire, Esq.,
Counsel for DirecTV Enterprises, Harris, Wiltshire & Gannis, LLP, 1200
Eighteenth Street, NW, Washington, DC 20036 and Mr. Jack Wengrynuik,
DirecTV Enterprises, LLC, 2230 E. Imperial Hwy, El Segundo, CA 90245.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 U.S.C. S 301.
47 C.F.R. SS 25.102(a) and 25.121(e).
See File SES-STA-20060501-00734; see also Letter from Scott A. Kotler,
Chief, Systems Analysis Branch, Satellite Division, International Bureau
to William M. Wiltshire, Esq., DA 06-990, released May 5, 2006
See File SES-STA-20060508-00756. The STA was granted for 30 days without
prejudice to any future enforcement action against DirecTV in connection
with unauthorized operation of its radio facilities. On June 9, 2006,
DirecTV filed for a 60-day extension of the STA. See File No. SES-STA
20060609-00958. The STA was extended for 60 days on June 12, 2006 without
prejudice to any future enforcement action against DirecTV in connection
with unauthorized operation of its radio facilities.
Letter from Ricardo Durham, Senior Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to Jack
Wengrynuik, DirecTV (November 9, 2006).
Letter from William M. Wiltshire, Esq., Counsel for DirecTV Enterprises,
LLC, to Peter Waltonen, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (December 22, 2006).
See File No. SES-LIC-20060608-00945.
47 C.F.R. S 25.121(e).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992); see also WCS
Communications, Inc., Notice of Apparent Liability for Forfeiture, 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
47 U.S.C. S 503(b)(2)(E). See also Forfeiture Policy Statement, Report and
Order, 12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303
47 C.F.R. 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) (proposing forfeitures of
$5,000 and $1,500 against a broadcaster who operated its station for 14
months without Commission authority and failed to timely file its renewal
application) ("Discussion Radio").
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); see also Lazer Broadcasting Corporation, Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 8710 (Enf. Bur., Spectrum Enf. Div.,
2006) ("Lazer Broadcasting"); Criswell College, Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf.
Div., 2006) ("Criswell"); National Weather Networks, Inc. Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 3922, 3925 (Enf. Bur.,
Spectrum Enf. Div., 2006)("NWN"); Journal Broadcast Corporation, Notice of
Apparent Liability for Forfeiture, 20 FCC Rcd 18211, 18213 (Enf. Bur.,
Spectrum Enf. Div., 2005) ("Journal Broadcast"); Shared Data Networks,
Notice of Apparent Liability for Forfeiture, 20 FCC Rcd 18184, 18187 (Enf.
Bur., Spectrum Enf. Div., 2005) ("SDN").
See Discussion Radio,19 FCC Rcd at 7438 (proposing a $1,500 forfeiture for
failure to file a timely renewal application for a broadcast station); see
also Lazer Broadcasting, 21 FCC Rcd at 8712; Criswell College, 21 FCC Rcd
at 5109; NWN, 21 FCC Rcd at 3925; Journal Broadcast, 20 FCC Rcd at 18213;
SDN, 20 FCC Rcd at 18187.
DirecTV reported revenues of approximately $14.7 billion in its annual
report for 2006.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Discussion Radio, 19 FCC Rcd at 7437.
Pacific Western Broadcasters, Inc., Memorandum Opinion and Order, 50 FCC
2d 819 (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"); NWN, 21 FCC Rcd at 3927 (rejecting a
licensee's claim that the forfeiture should be downwardly adjusted because
its operation of an unauthorized earth station did not cause interference
or disrupt other users); AGM-Nevada, LLC, Forfeiture Order, 18 FCC Rcd
1476, 1478-79 (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).
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur. 2004).
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.
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Federal Communications Commission DA 07-1451
Federal Communications Commission DA 07-1451