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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-SE-330
General Growth Properties ) NAL/Acct. No. 200732100021
Waterbury, Connecticut ) FRN # 0005261128
Adopted: August 22, 2007 Released: August 24, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand, four hundred dollars ($8,400) against
General Growth Properties ("GGP") for willful and repeated violations
of Section 301 of the Communications Act of 1934 ("Act"), as amended,
and Sections 1.903(a) and 1.949(a) of the Commission's Rules
("Rules"). The noted violations involve operating a Private Land
Mobile Radio Service ("PLMRS") station without Commission authority,
failing to file a timely renewal application for the station and
failing to respond to directives of the Spectrum Enforcement Division
("Division"), Enforcement Bureau ("Bureau") to provide certain
information and documents.
2. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by a wireless radio station except under,
and in accordance with, a Commission granted authorization.
Additionally, Section 1.949(a) of the Rules requires licensees to file
renewal applications for wireless radio stations, "no later than the
expiration date of the authorization for which renewal is sought, and
no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates on the specified expiration date.
3. On April 2, 2007, the Division released a Notice of Apparent Liability
for Forfeiture ("NAL") finding that GGP willfully and repeatedly
operated PLMRS station WPPT427 without Commission authority after its
authorization expired on April 3, 2005, failed to file a timely
renewal application for the station by the date of expiration, and
failed to respond to directives of the Division to provide the
information and documents requested in two letters of inquiry dated
September 27, 2006 and December 14, 2006. The NAL proposed a
forfeiture in the amount of ten thousand, five hundred dollars
($10,500) based on GGP's apparent willful and repeated violations of
Section 301 of the Act and Sections 1.903(a) and 1.949(a) of the
Rules. The NAL also downwardly adjusted that amount to nine thousand,
two hundred dollars ($9,200) based on corrective action taken by GGP
before the Commission initiated any inquiry or enforcement action, by
voluntarily disclosing to Commission staff in its April 17, 2006
request for Special Temporary Authority, that it had failed to file a
timely renewal application for the PLMRS station and had operated
without Commission authorization.
4. On April 20, 2007, GGP filed a response to the NAL ("Response"). In
its Response, GGP conceded that it violated the rules and sought a
reduction or abatement of the forfeiture amount based on its efforts
to initiate a national review of its PLMRS station licensing
procedures and to address internal communications and reporting issues
that resulted in its failure to respond to the Division's directives.
In addition, GGP asserted that the failure to file a timely renewal
application by its Brass Mill Center in Waterbury, Connecticut, was an
isolated and inadvertent incident and that it has an otherwise broad
history of overall compliance with the rules.
5. The forfeiture amount proposed 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. In assessing forfeitures,
Section 503(b)(2)(E) of the Act requires that we 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 such other matters as justice may
6. We have considered GGP's Response in light of the above statutory
factors, our rules, and the Forfeiture Policy Statement. We conclude
that GGP willfully and repeatedly violated Section 301 of the Act and
Sections 1.903(a) and 1.949(a) of the Rules. We also find that GGP's
history of overall compliance warrants a further reduction of the
proposed forfeiture amount to $8,400. GGP asserts, and a search of
Commission records confirms that the company has an overall history of
compliance with the rules. Accordingly, we downwardly adjust the
aggregate forfeiture amount from $9,200 to $8,400.
7. We find no other mitigating circumstances warranting further reduction
of the proposed forfeiture amount. GGP, in its response to our NAL,
admits to committing the acts leading to the violations, but asserts
that such acts were isolated and inadvertent. The Commission has held
that an unintended error does not nullify or mitigate violations of
the Act or the rules. In the context of a forfeiture action, "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.
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. Further, GGP asserts that as soon as
it received the NAL, it took steps to comply with the rules. GGP
explains that it revised its PLMRS station licensing procedures to
ensure that renewal applications are timely filed. GGP also states
that it corrected the internal communications problem that resulted in
its failure to respond to the Division's letters of inquiry. Although
GGP's corrective measures
are commendable, it is well-settled that subsequent remedial actions
undertaken by a licensee neither excuse nor nullify a licensee's rule
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's
Rules, GGP, IS LIABLE FOR A MONETARY FORFEITURE in the amount of eight
thousand, four hundred dollars ($8,400) for willful and repeated
violation of Section 301 of the Act and Sections 1.903(a) and 1.949(a)
of the Rules, and for willful and repeated failure to respond to
9. 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 the 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 12th Street, SW, Room
1-A625, Washington, D.C. 20554.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Ryan B.
Whitacre, Esq., Assistant General Counsel, General Growth Properties,
Inc., 110 N. Wacker Drive, Chicago, IL 60606.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
GGP, a real estate investment trust, is the second largest owner/operator
of shopping malls in the US (over 220). See Hoover's, Inc. (Feb. 13,
2007). GGP's net income in 2006 was over $63.8M. See Market Guide Company
Profiles, Multex.com, Inc. (2006).
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a) and 1.949(a).
47 C.F.R. S: 1.955(a)(1).
General Growth Properties, Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 6562 (Enf. Bur., Spectrum Enf. Div. 2006) ("NAL").
Id. at 6565.
Id. at 6562, 6565.
Id. at 6565 n.25 citing Petracom of Texarkana, LLC, Forfeiture Order, 19
FCC Rcd 8096, 8097-8098 (Enf. Bur. 2004) (forfeiture reduced for
voluntarily disclosure and initiating corrective action prior to
Commission inspection); Criswell College, Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf. Div. 2006);
National Weather Networks, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 3922, 3926 (Enf. Bur., Spectrum Enf. Div. 2006);
Journal Broadcast Corporation, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div. 2005);
Shared Data Networks, LLC, Notice of Apparent Liability for Forfeiture, 20
FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div. 2005).
See Letter from Ryan B. Whitacre, Esq., Assistant General Counsel, General
Growth Properties, Inc., to Kathryn S. Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (April 20, 2007) ("Response").
Response at 1-2.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S: 503(b)(2)(E).
Response at 2.
Id. at 1.
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("stating
that inadvertence . . . is at best, ignorance of the law, which the
Commission does not consider a mitigating circumstance") ("Southern
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. S: 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 Southern California, 6 FCC Rcd at
Response at 2.
See Padre Serra Communications, Inc., Letter Decision, 14 FCC Rcd 9709,
9714 (MMB 1999) (citing Gaffney Broadcasting, Inc., Memorandum Opinion and
Order, 23 FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., Notice
of Apparent Liability, 33 FCC 2d 706 (1962)).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
Federal Communications Commission DA-07-3697
Federal Communications Commission DA-07-3697