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Federal Communications Commission
Washington, D.C. 20554
) File No. EB-10-SE-003
In the matter of
) NAL/Acct. No. 201132100014
) FRN 0019696137
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 16, 2010 Released: December 17, 2010
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
BASF Corporation ("BASF"), former licensee of Private Land Mobile
Radio Service ("PLMRS") station WPNZ510, Pasedena, Texas, apparently
liable for a forfeiture in the amount of twenty-five thousand dollars
($25,000) for apparent willful and repeated violation of section 301
of the Communications Act of 1934, as amended ("Act") and section
1.903(a) of the Commission's rules ("Rules") and for apparent willful
violation of section 1.949(a) of the Rules. The noted apparent
violations involve BASF's failure to timely file a renewal application
for its PLMRS station and its operation of the station for five years
without Commission authority.
2. On August 12, 1999, BASF was granted a five-year license to operate
station WPNZ510 through August 12, 2004. On May 17, 2004, the
Commission sent BASF a renewal reminder notice, indicating that a
failure to file a timely renewal application would lead to automatic
expiration of the license. BASF did not submit a renewal application
for station WPNZ510 prior to the license expiration date. In the
absence of such filing, BASF's license for station WPNZ510
automatically canceled on the expiration date. On December 18, 2009,
BASF filed with the Wireless Telecommunications Bureau ("WTB") a
request for Special Temporary Authority ("STA"), stating that it had
recently discovered that its license for station WPNZ510 had expired
five years earlier and that the STA was necessary for continued
operation of its radio communications at its Clear Lake, Texas
chemical manufacturing site pending the closing date of a transaction
involving the sale of the Clear Lake site on or about December 31,
2009. On December 22, 2009, WTB granted the STA under call sign
3. Because it appeared that BASF may have operated station WPNZ510 after
the expiration of its license, WTB referred the matter to the
Enforcement Bureau for investigation and possible enforcement action.
On March 1, 2010, the Spectrum Enforcement Division of the Enforcement
Bureau issued a letter of inquiry ("LOI") to BASF.
4. In its March 31, 2010 response to the LOI, BASF claimed that it
discovered the expiration of its license to operate station WPNZ510 on
or about December 9, 2009, in the course of performing due diligence
in connection with the sale of its Clear Lake, Texas chemical
manufacturing site. BASF acknowledged that it used the frequencies
associated with station WPNZ510, without obtaining the required
Commission authority, in connection with day-to-day operations at its
Clear Lake manufacturing facility between August 12, 2004, the date
the license for station WPNZ510 expired, and December 31, 2009, when
BASF sold the Clear Lake facility. According to BASF, the expiration
of the license for station WPNZ510 appears to have resulted from an
administrative oversight. BASF also asserted that it promptly and
voluntarily disclosed its oversight to the Commission and sought an
STA upon discovering the expired license. Further, BASF noted that it
has begun to design and implement revised procedures to ensure its
ongoing compliance with the Commission's licensing requirements.
5. 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 radio except under, and in accordance
with, a Commission-granted authorization. Additionally, section
1.949(a) of the Rules requires that licensees 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
6. As a Commission licensee, BASF was required to maintain its
authorization in order to operate station WPNZ510. BASF admitted that
it operated its PLMRS station without Commission authority in
connection with day-to-day operations at its Clear Lake manufacturing
site for more than five years, from August 12, 2004, the license
expiration date, until December 22, 2009, when WTB granted BASF's STA
request. By operating station WPNZ510 after the license expiration
date, BASF apparently violated section 301 of the Act and section
1.903(a) of the Rules. BASF also apparently violated section 1.949(a)
of the Rules by failing to timely file a renewal application for
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 "repeated" means more than once. Based on the record before
us, it appears that BASF's violation of section 301 of the Act and
section 1.903(a) of the Rules is willful and repeated, and its
violation of section 1.949(a) of the Rules is willful.
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
9. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and a base
forfeiture amount of $3,000 for failure to file required forms or
information. The Commission has held that a licensee's continued
operation without authorization and its failure to timely file a
renewal application constitute separate violations of the Act and the
Rules and warrant the assessment of separate forfeitures. Given the
circumstances of this case, we start with the base forfeiture amount
of $10,000 for BASF's continued operation of station WPNZ510 after the
expiration of its license on August 12, 2004, and the $3,000 base
forfeiture amount for BASF's failure to timely file a renewal
application - for a total base forfeiture of $13,000.
10. This base forfeiture amount, however, is subject to adjustment, either
upward or downward. Here, we find no basis for a downward adjustment.
Once BASF's license expired, it lacked the required authority to
operate station WPNZ510 but continued to do so. The Commission has
emphasized that "[a]ll licensees are responsible for knowing the terms
of their licenses and for filing a timely renewal application if they
seek to operate beyond that term." BASF's assertions that it has
designed revised compliance procedures, while laudable, do not negate
its liability for the instant violations, nor do these
post-investigation remedial efforts warrant reduction of the
forfeiture. Similarly, in the current context, we will not reduce the
base forfeiture amount on other grounds, including BASF's disclosure
of its violation just prior to seeking a transfer of the license and
long after the license's expiration, or the nature of the station as
part of the Private Land Mobile Radio Service. Indeed, we are mindful
of the fact that the reduced forfeiture amounts applied in past cases
do not appear to be creating sufficient incentives for all PLMRS
licensees to monitor their license expiration dates and timely seek
11. Given the totality of the circumstances and consistent with the
Forfeiture Policy Statement, we conclude that an upward adjustment of
the $13,000 base forfeiture is warranted. In this regard, we take into
account the fact that BASF's unlawful operation continued for more
than five years. We also recognize that BASF is a multi-billion
dollar, global enterprise, and 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 BASF
should expect the assessment of higher forfeitures for violations. In
the final analysis and based on all the factors and evidence,
including the extended period of unauthorized operation and BASF's
size and ability to pay a forfeiture, we conclude that a forfeiture of
twenty-five thousand dollars ($25,000) is appropriate.
IV. ordering clauses
12. 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, BASF Corporation IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for the willful and
repeated violation of section 301 of the Act and section 1.903(a) of
the Rules and the willful violation of section 1.949(a) of the Rules.
13. 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, BASF Corporation SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture consistent with
paragraph 15 below.
14. 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/Account Number and FRN referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
DC 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. BASF Corporation must also send
electronic notification to Ricardo.Durham@fcc.gov and to
Linda.Nagel@fcc.gov on the date said payment is made.
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to the Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, DC 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must include
the NAL/Account Number referenced in the caption. The statement must
also be emailed to Ricardo.Durham@fcc.gov and to Linda.Nagel@fcc.gov.
16. 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
17. 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 Keith H. Ansbacher, Vice President and
Associate General Counsel, BASF Corporation, 100 Campus Drive, Florham
Park, NJ 07932, and to counsel for BASF Corporation, Brian Murray,
Esq., Latham & Watkins LLP, 555 Eleventh St., N.W., Suite 1000,
Washington, DC 20004-1304.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
See 47 C.F.R. S: 1.955(a)(1) (stating that "[a]uthorizations automatically
terminate, without specific Commission action, on the expiration date
specified therein, unless a timely application for renewal is filed.").
See File No. 0004070696.
WTB granted the STA on December 22, 2009, without prejudice to any
enforcement action related to unauthorized operation of station WPNZ510.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Julie Y. Wong,
BASF Corporation (March 1, 2010).
See Letter from Brian Murray, Esq., Latham & Watkins LLP, to Kathryn S.
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (March 31, 2010) ("LOI Response").
See LOI Response at 1, 3.
See id. at 3.
See id. at 1.
See id. at 2. See also Letter from Brian Murray, Esq., Latham & Watkins
LLP, to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (May 5, 2010)
(supplementing the LOI Response regarding BASF's license renewal
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
See LOI Response at 3.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under section 503(b) of the Act).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 C.F.R. S: 1.80(b). See also Forfeiture Policy Statement, 12 FCC Rcd at
17099 (noting that "[a]lthough we have adopted the base forfeiture amounts
as guidelines to provide a measure of predictability to the forfeiture
process, we retain our discretion to depart from the guidelines and issue
forfeitures on a case-by-case basis, under our general forfeiture
authority contained in Section 503 of the Act.").
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7438 (2004).
While section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL, we may consider the fact that BASF's misconduct
occurred over an extended period (between 2004 and 2009) to place "the
violations in context, thus establishing the licensee's degree of
culpability and the continuing nature of the violations." Roadrunner
Transportation Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000).
The forfeiture amount we propose herein relates only to BASF's apparent
violations that have occurred within the past year.
See Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22, 24, 26,
27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate
the Development and Use of the Universal Licensing System in the Wireless
Telecommunications Services, 13 FCC Rcd 21027, 21071 P: 96 (1998) (noting
that the renewal reminder letter is a "convenience to licensees [and] does
not in any way absolve licensees from timely filing their renewal
See supra note 13 and accompanying text.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099 P: 7
(1994) (corrective action taken to comply with the Rules is expected, and
does not mitigate any prior forfeitures or violations); see also, United
States Cellular Corp., Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 16424, 16429 P: 14 (2007) (remedial efforts taken after the deadline
did not mitigate violation of the Commission's E911 rules and relevant
orders); AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd 21866,
21875-6 P:P: 26-28 (2002) (remedial action to correct tower painting
violation was not a mitigating factor warranting reduction of forfeiture).
See e.g., Mathews Readymix LLC, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 12828, 12831 (Enf. Bur., Spectrum Enf. Div. 2007)
(proposing a $6,200 forfeiture for unauthorized operation of a PLMRS
station and for failure to file a timely license renewal application). We
also note that the instant case is distinguishable from Discussion Radio
which turned on its particular facts. See supra note 23. In Discussion
Radio, the Commission imposed a forfeiture against a broadcast licensee
for 14 months of unauthorized operation, observing that the licensee's
conduct in that case was not comparable to "pirate" radio operations. See
id at 7438. In reducing the forfeiture amount in Discussion Radio from
$10,000 to $5,000, the Commission particularly noted that the broadcast
license renewal packet that would have facilitated timely renewal filing
was misdirected to an incorrect address. Id. The Commission further
limited its decision, stating that it would be "disinclined to propose
reductions in future cases based on alleged errors in mailing license
renewal materials." Id. at n.20.
See 47 C.F.R. S: 1.80(b)(4), Note to Paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures (establishing "repeated or
continuous violation" as an upward adjustment factor).
BASF is the world's largest chemical company, has more than 150 major
manufacturing facilities, and does business worldwide. Currently, BASF is
also ranked 81 on the Fortune 500, with reported revenues of more than $70
visited Dec. 17, 2010).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 (cautioning all
entities and individuals that, independent from the uniform base
forfeiture amounts, the Commission will take into account the subject
violator's ability to pay in determining the amount of a forfeiture to
guarantee that forfeitures issued against large or highly profitable
entities are not considered merely an affordable cost of doing business,
and noting that such large or highly profitable entities should expect
that the forfeiture amount set out in a Notice of Apparent Liability
against them may in many cases be above, or even well above, the relevant
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S: 1.80.
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Federal Communications Commission DA 10-2347
Federal Communications Commission DA 10-2347