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                                   Before the

                       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:

   I. introduction

    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.

   II. background

    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.

   III. discussion

    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
       terminates.

    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
       license term.

    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
       require."

    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
       violations.

   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
       instant violations.

   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
       renewal.

   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
       Rules.

   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
       documentation submitted.

   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
       55746.

   FEDERAL COMMUNICATIONS COMMISSION

   Ricardo M. Durham

   Acting Chief

   Spectrum Enforcement Division

   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 http://wireless2.fcc.gov/UlsApp/UlsSearch/license.jsp?licKey=1794709.

   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
   http://wireless2.fcc.gov/UlsApp/UlsSearch/license.jsp?licKey=1794709.

   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
   WPMH780.

   See File No. 0004183254.

   Id.

   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
   Response").

   See id.

   See id.

   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
   Policy Statement").

   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)
   ("Discussion Radio").

   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
   applications").

   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
   mitigating circumstance").

   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
   http://wireless2.fcc.gov/UlsApp/UlsSearch/allHistory.jsp?licKey=1794709
   (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
   station).

   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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-479

                                       6

   Federal Communications Commission DA 11-479