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Federal Communications Commission
Washington, D.C. 20554
) File No. EB-10-SE-047
In the matter of
) NAL/Acct. No. 201132100027
Shubat Transportation Company
) FRN 0019629450
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 10, 2011 Released: March 10, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Shubat Transportation Company ("Shubat"), former licensee of Private
Land Mobile Radio Service ("PLMRS") station WPMH780, Hibbing,
Minnesota, apparently liable for a forfeiture in the amount of
nineteen thousand dollars ($19,000) 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 Shubat's operation of the station
for more than six years without Commission authority and its failure
to timely file a renewal application for its PLMRS station.
2. On July 30, 1998, Shubat was granted a five-year license to operate
station WPMH780 through July 30, 2003. On May 5, 2003, the
Commission's Wireless Telecommunications Bureau ("WTB") sent Shubat an
automated "renewal reminder" notice for station WPMH780. Shubat did
not submit a renewal application for station WPMH780 prior to the
license expiration date. In the absence of such filing, Shubat's
license for station WPMH780 automatically terminated on the expiration
date. On March 11, 2010, Shubat filed with WTB a request for Special
Temporary Authority ("STA"), stating that it had discovered that its
license for station WPMH780 had expired over six years earlier and
that the STA was necessary for continued operation of its radio
communications while it began the process of applying for a new
license. On March 12, 2010, WTB granted the STA under call sign
WQLN311. On March 23, 2010, Shubat filed an application for a new
PLMRS station license. On April 12, 2010, WTB granted the new license
under call sign WQLR868.
3. Because it appeared that Shubat may have operated station WPMH780
after the expiration of its license, WTB referred the matter to the
Enforcement Bureau for investigation and possible enforcement action.
On July 16, 2010, the Spectrum Enforcement Division of the Enforcement
Bureau issued a letter of inquiry ("LOI") to Shubat.
4. In its July 27, 2010 response to the LOI, Shubat states that it
discovered the expiration of its license to operate station WPMH780 on
January 25, 2008. Shubat further claimed that its personnel "did not
have knowledge of FCC requirements/procedures," and Shubat sought
assistance from third parties to address its expired license.
Specifically, Shubat asserts that in mid-February 2010, after the
company servicing its radio equipment discontinued communications with
Shubat regarding the expired license, Shubat contacted another company
for help. About a month later, this second company submitted a letter
to the FCC on Shubat's behalf requesting an STA. In the LOI response,
Shubat admits that it continued operating WPMH780 for almost seven
years after the license expired.
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, Shubat was required to maintain its
authorization in order to operate station WPMH780. Shubat admitted
that it operated its PLMRS station without Commission authority for
more than six years, from September 1, 2003 until March 11, 2010, when
it applied for an STA. By operating station WPMH780 after the license
expiration date, Shubat apparently violated section 301 of the Act and
section 1.903(a) of the Rules. Shubat also apparently violated section
1.949(a) of the Rules by failing to timely file a renewal application
for station WPMH780 while continuing to operate the station beyond its
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 Shubat'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. Accordingly,
we herein propose separate forfeiture amounts for Shubat's separate
10. We propose a base forfeiture in the amount of $10,000 for Shubat's
continued operation of station WPMH780 after the expiration of its
license on July 30, 2003, and in addition, we propose the base
forfeiture amount of $3,000 for Shubat's failure to file the renewal
application for its PLMRS station within the time period specified in
section 1.949(a) of the Rules, for a total base forfeiture of $13,000.
Shubat's claimed lack of knowledge of the Commission's Rules, the
negligent acts or omissions of its employees or agents, and its
subsequent remedial actions do not negate its liability for the
11. The $13,000 base forfeiture amount, however, is subject to adjustment,
either upward or downward. Here, we find no basis for a downward
adjustment. Once Shubat's license expired, it lacked the required
authority to operate station WPMH780 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."
12. It is also well established that administrative oversight or
inadvertence is not a mitigating factor warranting a downward
adjustment of a forfeiture. Shubat's reliance on a third party, the
company that serviced its radio equipment, to file the necessary forms
to reinstate the license does not provide grounds for a downward
adjustment, as licensees are held responsible and accountable for the
acts or omissions of its agents. Similarly, although Shubat's
disclosures and remedial efforts appear to precede the Commission's
investigation or initiation of enforcement action, we find the
company's actions dilatory. As Shubat acknowledged, it became aware of
the violation on January 25, 2008, but waited until March 11, 2010 -
over two years - to notify Commission staff and file a request for
STA. Under the circumstances and consistent with precedent, we decline
to reduce the base forfeiture amount on these or other grounds,
including Shubat's delayed (albeit voluntary) disclosure of the
violation and its belated remedial efforts. 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
13. 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 Shubat's unlawful operation continued for six
and a half years and even after it became aware of the violation, an
additional two years elapsed before it sought Commission authority.
Based on all the factors and evidence, including the extended period
of unauthorized operation, we conclude that a proposed aggregate
forfeiture of $19,000 is appropriate.
IV. ordering clauses
14. 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, Shubat Transportation
Company IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of nineteen thousand dollars ($19,000) 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
15. 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, Shubat Transportation Company 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 17 below.
16. 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. Shubat Transportation Company must also
send electronic notification to Ricardo.Durham@fcc.gov and to
Celia.Lewis@fcc.gov on the date said payment is made.
17. 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 Celia.Lewis@fcc.gov.
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 Timothy Sanders, Director, Shubat
Transportation Company, 618 West 41st Street, Hibbing, Minnesota
FEDERAL COMMUNICATIONS COMMISSION
Ricardo M. Durham
Spectrum Enforcement Division
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
See Automated Renewal Reminder Letter from the Wireless Telecommunications
Bureau, Federal Communications Commission, to Shubat Transportation
Company, Reference No. 1844527 (May 5, 2003).
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."). On
October 5, 2003, Commission records were updated to reflect the license's
automatic termination. See
See File No. 0004145420.
Id. WTB granted the STA on March 12, 2010, without prejudice to any
enforcement action related to the unauthorized operation of station
See File No. 0004183254.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Tim Sanders,
Director, Shubat Transportation (July 16, 2010).
See Letter from Timothy Sanders, Director, Shubat Transportation, to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (July 27, 2010) ("LOI
See id. at 1-2.
Although its license automatically cancelled on July 30, 2003, Shubat
claims to have operated the station only from September 1, 2003 through
March 11, 2010. See id. at 2.
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).
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)
See infra notes 27, 29-31 and accompanying text.
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 Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ...
is at best, ignorance of the law, which the Commission does not consider a
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002); MTD, Inc., Memorandum Opinion and
Order, 6 FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972). We also note that, while Shubat
claims to be unfamiliar with FCC processes and requirements, the materials
it submitted in response to the Spectrum Enforcement Division's LOI show
otherwise. As evidenced by its filings, Shubat employees were in direct
contact with the Commission regarding the station license just a year
prior to its expiration. See Fax from Joan Sullivan, General Manager,
Shubat Transportation, to Ruth Taylor, Wireless Telecommunications Bureau
(June 11, 2002) (seeking reinstatement of its license after the license
was cancelled based on a prior communication between Shubat personnel and
the Commission). Shubat also responded to inquiries made by the Wireless
Telecommunications Bureau in the context of a 2001 audit of Private Land
Mobile stations. See
(noting that Shubat's audit letter response stated "License Operational").
In this regard, we note that one of the documents Shubat submitted in
response to the Bureau LOI includes the following notations: "we are not
licensed . . . $10,000/day fine . . . renew every 10 years". See Notations
on Sales Quote, January 25, 2008. It is clear, therefore, that Shubat was
not only aware of its license's expiration, but also understood that
substantial monetary penalties could result for such a violation.
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); BASF Corporation,
Notice of Apparent Liability for Forfeiture, DA 10-2347 P: 10 (Enf. Bur.,
Rel. Dec. 17, 2010) ("BASF Corporation"). Also, in several analogous
cases, we have found the base forfeiture amount is not subject to downward
adjustment for good faith or voluntary disclosure where the violator's
attempts to come into compliance were dilatory. See, e.g., Miller
Breweries East, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 127, 130 (Enf. Bur., Spectrum Enf. Div. 2008) (finding that a downward
adjustment was unwarranted where the violator waited seven months to
notify Commission staff and seek authority to operate the station); Domtar
Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
13811, 13816 (Enf. Bur., Spectrum Enf. Div., 2006) (finding that a
downward adjustment was unwarranted where the violator waited eight months
to notify Commission staff and seek authority to operate the station); see
also American Paging Inc., Memorandum Opinion and Order, 12 FCC Rcd 10417,
10420 (Wireless Telecommunications Bureau, Enf. and Consumer Info. Div.,
1997) (finding that a downward adjustment for voluntary disclosure was
unwarranted where the violator did not reveal its violation until
approximately one month after having various conversations with Commission
staff regarding an STA and that a downward adjustment for good faith
attempts to comply was unwarranted where the violator continued to operate
the station without authorization after its STA request was denied); see
also Five Star Parking d/b/a Five Star Taxi Dispatch, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 18857, 18860-61 (Enf. Bur., Spectrum
Enf. Div., 2007), forfeiture ordered and paid, 23 FCC Rcd 2649 (Enf. Bur.,
Spectrum Enf. Div., 2008); Mitchell Electric Membership Cooperative,
Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 5538, 5541 (Enf.
Bur., Spectrum Enf. Div., 2006) (in both cases a downward adjustment was
unwarranted where the violator waited six months after becoming aware of
the violation to notify Commission staff and seek authority to operate the
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 forfeiture of only $6,200 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 25.
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. Discussion Radio at 7438. In reducing the forfeiture amount in
Discussion Radio from $10,000 to $5,000, the Commission noted that the
broadcast license renewal packet that would have facilitated timely
renewal filing was misdirected to an incorrect address. Id. However, 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 BASF Corporation P: 11; Call Mobile, Inc., Notice of Apparent
Liability for Forfeiture, DA 11-8 P: 12 (Enf. Bur., Spectrum Enf. Div.,
Rel. Jan. 4, 2011) ("Call Mobile").
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).
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 Shubat's misconduct
occurred over an extended period (between 2003 and 2010) 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);
see also BASF Corporation P: 9; Call Mobile P: 10. The forfeiture amount
we propose herein relates only to Shubat's apparent violations that have
occurred within the past year.
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 11-479
Federal Communications Commission DA 11-479