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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No.: EB-10-PA-0099
Harrah's Atlantic City Operating
Company LLC ) NAL/Acct. No.: 201132400006
Atlantic City, New Jersey ) FRN: 0017250283
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 7, 2011 Released: April 7, 2011
By the District Director, Philadelphia Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Harrah's Atlantic City Operating Company LLC ("Harrah's"), former
licensee of Industrial/Business Pool Radio Station WSZ911 in Atlantic
City, New Jersey, apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000) for apparent willful and repeated
violation of section 301 of the Communications Act of 1934, as amended
("Act") and sections 1.903(a) and 1.949(a) of the Commission's rules
("Rules"). The noted apparent violations involve Harrah's operation of
Station WSZ911 without Commission authority, and its failure to timely
file a renewal application for the station for almost ten years.
2. On April 8, 2010, agents in the Enforcement Bureau's Philadelphia
Office ("Philadelphia Office") conducted routine monitoring of several
paging frequencies in the Atlantic City area and observed an
unlicensed station operating on 462.800 MHz. The agents used
direction-finding techniques to locate the source of the transmissions
on 462.800 MHz to the roof of Harrah's Resort Atlantic City, 777
Harrah's Boulevard, Atlantic City, New Jersey. The same day, the
agents inspected the radio transmitting equipment operated by Harrah's
and confirmed that the transmitter was operating on the frequency
462.800 MHz. According to the Commission's records, Harrah's previous
license to operate the 462.800 MHz paging system under the call sign
WSZ911 had expired on December 13, 2000.
3. On May 3, 2010, the Philadelphia Office issued a letter of inquiry
("LOI"). In its response to the LOI, Harrah's admits that it failed to
renew its license for station WSZ911 after it expired on December 13,
2000. Harrah's also concedes that, notwithstanding being notified of
the unlicensed operation at the time of the inspection on April 8,
2010, it did not file a license application to operate on 462.800 MHz
until after its receipt of the LOI, and that it continued to operate
on the unauthorized frequency after the agents' inspection. However,
Harrah's requests that the Commission excuse the unauthorized
operation because: (1) its failure to renew the license for operation
on 462.800 MHz was inadvertent; (2) the unlicensed operation did not
cause any harmful interference; and (3) Harrah's corrected the
situation immediately upon notification by the FCC.
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. 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. The legislative
history to section 312(f)(1) clarifies that this definition of willful
applies to both sections 312 and 503(b) and the Commission has so
interpreted the term in the section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. "Repeated" means that the act was committed or omitted
more than once, or lasts more than one day.
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. On April 8, 2010, agents determined that Harrah's operated radio
transmission equipment on the frequency 462.800 MHz without a valid
license. Harrah's admitted that it failed to renew its license and had
continued to operate without authorization even after its license for
Station WSZ911 expired at the end of 2000. Based on the evidence
before us, we find that Harrah's apparently willfully and repeatedly
violated section 301 of the Act and section 1.903(a) of the Rules by
operating radio transmitting equipment on the frequency 462.800 MHz
without a license, and that it violated section 1.949(a) of the Rules
by failing to timely file a renewal application for Station WSZ911.
7. We disagree with Harrah's claim in its response to the LOI that we
should refrain from taking enforcement action in light of several
mitigating circumstances. First, Harrah's claims that its failure to
renew its license was inadvertent. It is well-established Commission
policy that inadvertence is not a mitigating circumstance. As a
Commission licensee, Harrah's is charged with the responsibility of
knowing and complying with the terms of its authorization. Second,
Harrah's claims that enforcement action is not warranted because its
unauthorized operation did not cause interference to other licensees.
It is an equally well-established Commission policy that the absence
of public harm does not justify abstaining from enforcement action.
Similarly, we will not refrain from taking enforcement action based on
any corrective actions Harrah's took after the agents' inspection on
April 8, 2010. The Commission consistently has stated that "corrective
action taken to come into compliance with Commission rules or policy
is expected, and does not nullify or mitigate any prior forfeitures or
violations." Moreover, Harrah's concedes that it had not even applied
for a license until after receipt of the LOI.
8. 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. Although we find no basis here for a downward adjustment
given the circumstances of this case, we conclude that an upward
adjustment of the total $13,000 base forfeiture is warranted. In this
regard, we take into account the fact that Harrah's unlawful operation
continued for almost ten years. Thus, based on all the factors and
evidence, including the extended period of unauthorized operation, we
conclude that a proposed aggregate forfeiture of $15,000 is
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Harrah's Atlantic
City Operating Company LLC is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of fifteen thousand dollars
($15,000) for violation of section 301 of the Act and sections
1.903(a) and 1.949(a) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Harrah's Atlantic City
Operating Company LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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, D.C. 20554. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Harrah's Atlantic City
Operating Company LLC shall send electronic notification on the date
said payment is made to NER-Response@fcc.gov,
12. 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, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and must include the NAL/Acct. No. referenced in
the caption. An electronic copy shall also be sent to
13. 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 ("GAAP"); 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.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Harrah's Atlantic City Operating
Company LLC at 777 Harrah's Boulevard, Atlantic City, New Jersey,
08401 and to Harrah's Law Department c/o Bally's Atlantic City, Attn:
VP of Legal Affairs & Chief Legal Officer, Park Place & Boardwalk,
Atlantic City, New Jersey 08401.
FEDERAL COMMUNICATIONS COMMISSION
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a), 1.949(a).
See Letter from Gene Stanbro, District Director, Philadelphia Office,
Northeast Region, Enforcement Bureau, to Harrah's Atlantic City, dated May
See Letter from N. Lynn Hughes, Assistant Secretary, Harrah's Atlantic
City Operating Company, LLC, to Gene J. Stanbro, District Director,
Philadelphia Office, Northeast Region, Enforcement Bureau, dated June 4,
2010 ("LOI Response").
According to the Commission's records, Harrah's filed an application on
May 27, 2010 seeking authorization to operate the 462.800 MHz paging
system in Atlantic City, New Jersey. See File No. 0004263119. On June 9,
2010, the Commission granted the application and assigned the station the
new call sign WQLZ979.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern California Broadcasting
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
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).
LOI Response at 1.
See, e.g., Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387
(1991)(stating that "inadvertence ... is at best, ignorance of the law,
which the Commission does not consider a mitigating circumstance").
LOI Response at 2.
See, e.g., Pacific Western Broadcasters, Inc., 50 FCC 2d 819 (1975); see
also Mobile Relay Associates, Memorandum Opinion and Order, 23 FCC Rcd
8394 (Enf. Bur. 2008) (citing Lockheed Martin Corporation, Memorandum
Opinion and Order, 22 FCC Rcd 4116, 4119 (Enf. Bur. 2007)).
LOI Response at 1.
See, e.g., AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd
21866, 21870-71 (2002) (finding that remedial action to correct the
violation at issue was not a mitigating factor and noting that all
licensees and Commission regulates are expected to promptly take
corrective action when violations are brought to their attention). See
also Seawest Yacht Brokers, Notice of Forfeiture, 9 FCC Rcd 6099 (1994)
(corrective action taken to comply with the Rules is expected, and does
not mitigate any prior forfeitures or violations).
LOI Response at 1.
47 C.F.R. S: 1.80(b). See also 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, 17099 (1997)
(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"), recon. denied, 15 FCC Rcd
See BASF Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 17300, 17303 P: 11 (Enf. Bur. 2010).
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).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 1.903(a), 1.949(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-633
Federal Communications Commission DA 11-633