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Federal Communications Commission
Washington, D.C. 20554
In the matter of File No.: EB-09-SE-130
Call Mobile, Inc. NAL/Acct. No.: 201132100021
Former Licensee of Station WPKM300 FRN: 0003780590
notice of apparent liability for forfeiture
Adopted: January 4, 2011 Released: January 4, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Call Mobile, Inc. ("Call Mobile"), former licensee of
Industrial/Business Pool Radio station WPKM300, in Lexington,
Kentucky, 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 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 Call Mobile's operation of station WPKM300
without Commission authority and its failure to timely file a renewal
application for the station for more than two and a half years.
2. On April 16, 1997, Call Mobile was granted a license to operate
station WPKM300 until the license expiration date of April 16, 2007.
On January 22, 2007, the Commission sent Call Mobile a renewal
reminder notice, indicating that a failure to file a timely renewal
application would lead to automatic expiration of the license. Call
Mobile did not submit a renewal application for station WPKM300 prior
to the license expiration date. In the absence of such filing, Call
Mobile's license for station WPKM300 automatically terminated on the
3. On January 5, 2010, following receipt of a complaint alleging that
Call Mobile may have operated station WPKM300 after the expiration of
its license, the Spectrum Enforcement Division ("Division") of the
Enforcement Bureau of the Federal Communications Commission issued a
letter of inquiry ("LOI") to Call Mobile.
4. In its response to the LOI dated January 27, 2010 and received by the
Commission on January 29, 2010, Call Mobile stated that it first
became aware of the expiration of its license to operate station
WPKM300 on January 5, 2010, when it received the LOI by facsimile.
Call Mobile admitted that prior to the receipt of the LOI, it
continued to operate station WPKM300 after its April 16, 2007 license
expiration date, with the belief that the license was current. Call
Mobile explained that because its other stations have licenses that
expire in 2013, and because it had consolidated several underlying
licenses under the WPKM300 call sign, it mistakenly disregarded the
renewal notification received for station WPKM300 as being for an
inactive call sign. Call Mobile states that at first it believed the
LOI was sent as a result of a mistake. However, upon discovering that
the LOI correctly noted the expiration of its license, Call Mobile
stated that "the very next day" after receiving the LOI, it "took
action and had the coordination and FCC application [to reauthorize
the station license] expedited."
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, Call Mobile was required to maintain its
authorization in order to operate station WPKM300. Call Mobile
admitted that it continued to operate its radio station without
Commission authority for more than two and a half years after the
expiration of its license, a situation that Call Mobile did not seek
to remedy until January 6, 2010, the day after it learned of its
alleged violation from the Division LOI. By operating station WPKM300
after the station's license expiration date of April 16, 2007, Call
Mobile apparently violated section 301 of the Act and section 1.903(a)
of the Rules. Call Mobile also acted in apparent violation of section
1.949(a) of the Rules by failing to timely file a renewal application
for station WPKM300.
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 Rules, and
"repeated" means more than once. Based on the record before us, it
appears that Call Mobile'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 Call Mobile's
10. We propose a base forfeiture in the amount of $10,000 for Call
Mobile's continued operation of station WPKM300 after the expiration
of its license on April 16, 2007, and in addition, we propose the base
forfeiture amount of $3,000 for Call Mobile's failure to file the
renewal application for its radio station within the time period
specified in section 1.949(a) of the Rules, for a total base
forfeiture of $13,000.
11. This base forfeiture amount, however, is subject to adjustment, either
upward or downward. Here, we find no basis for a downward adjustment.
Once Call Mobile's license expired, it lacked the required authority
to operate station WPKM300 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." It is well established that
administrative oversight or inadvertence is not a mitigating factor
warranting a downward adjustment of a forfeiture. Likewise, a
violator's lack of knowledge or erroneous beliefs is not a mitigating
factor warranting reduction of a forfeiture. Call Mobile's actions to
remedy its situation when it learned of its error from the Commission,
while laudable, do not negate its liability for the instant
violations, nor do these post-investigation remedial efforts warrant
reduction of the forfeiture. 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.
12. 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 Call Mobile's unlawful operation continued for
more that two and a half 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
13. 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, Call Mobile IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) 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.
14. 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, Call Mobile SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. 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,
D.C. 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. Call Mobile must also send electronic
notification to Katherine.Power@fcc.gov and Ricardo.Durham@fcc.gov on
the date said payment is made.
16. 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, D.C. 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must include
the NAL/Acct. No. referenced in the caption. The statement must also
be emailed to Katherine Power at Katherine.Power@fcc.gov and Ricardo
Durham at Ricardo.Durham@fcc.gov.
17. 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 Christopher C. Dunbar, President, Call
Mobile, Inc., 3010 Duncan Machinery Drive, Suite 100, Lexington,
FEDERAL COMMUNICATIONS COMMISSION
Ricardo M. Durham
Spectrum Enforcement Division
Industrial/Business Pool Radio stations are part of the Private Land
Mobile Radio Service ("PLMRS").
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 Call Mobile Inc., Reference
No. 4390744 (January 22, 2007).
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").
Commission records were updated to reflect the cancellation of the
terminated license on June 3, 2007. See
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Christopher
Dunbar, President, Call Mobile (January 5, 2010).
See Declaration from Christopher Dunbar, President, Call Mobile, to
Katherine Power, Esq., Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (January 29, 2010) ("LOI Response").
LOI Response at 1.
LOI Response at 2.
LOI Response at 3.
Id. See E-Mail correspondence from Becky Ott, FCC Licensing, Enterprise
Wireless Alliance, Gettysburg, Pennsylvania, to Christopher Dunbar,
President, Call Mobile (Jan. 6, 2010). Call Mobile filed for license
reinstatement on January 15, 2010, and its application was granted on
January 27, 2010, under call sign WQLI256. See File No. 0004093644.
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 2.
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) ("Southern California").
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 Call Mobile's misconduct
occurred over an extended period (between 2007 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, 9671-71 (2000);
see also BASF Corporation, Notice of Apparent Liability for Forfeiture, DA
10-2347 P: 9 (Enf. Bur., Rel. Dec. 17, 2010) ("BASF Corporation"). The
forfeiture amount we propose herein relates only to Call Mobile'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 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., Profit Enterprises, Inc., 8 FCC Rcd 2846, 2846 P: 5 (1993)
(denying the mitigation claim of a manufacturer/distributor who thought
that the equipment certification and marketing requirements were
inapplicable, stating that its "prior knowledge or understanding of the
law is unnecessary to a determination of whether a violation existed ...
ignorance of the law is [not] a mitigating factor"); Lakewood Broadcasting
Service, Inc., 37 FCC 2d 437, 438 P: 6 (1972) (denying a mitigation claim
of a broadcast licensee who asserted an unfamiliarity with the station
identification requirements, stating that licensees are expected "to know
and conform their conduct to the requirements of our rules"); Kenneth Paul
Harris, Sr., 15 FCC Rcd 12933, 12935 P: 7 (Enf. Bur. 2000) (denying a
mitigation claim of a broadcast licensee, stating that its ignorance of
the law did not excuse the unauthorized transfer of the station); Maxwell
Broadcasting Group, Inc., 8 FCC Rcd 784, 784 P: 2 (Mass Med. Bur. 1993)
(denying a mitigation claim of a noncommercial broadcast licensee, stating
that the excuse of "inadverten[ce], due to inexperience and ignorance of
the rules ... are not reasons to mitigate a forfeiture" for violation of
the advertisement restrictions).
See supra note 8 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 22. 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 BASF Corporation, P: 11.
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: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 11-8
Federal Communications Commission DA 11-8