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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No.: EB-09-LA-0094
Cerritos Ford )
NAL/Acct. No.: 201032900003
Licensee of Station WQKA311 )
Cerritos, California )
Adopted: January 31, 2012 Released: February 1, 2012
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of four thousand dollars ($4,000) to Cerritos Ford, licensee of
Station WQKA311 in Cerritos, California, for willfully and repeatedly
violating Section 1.903(a) of the Commission's rules (Rules), which
requires stations in the Wireless Radio Service, such as Station
WQKA311, to operate in accordance with the provisions of the rule and
as authorized by the Commission. The noted violations involve Cerritos
Ford's operation on frequency 467.675 MHz, a frequency not authorized
on the Station WQKA311 license.
2. After receiving a complaint, an agent from the Enforcement Bureau's
Los Angeles Office (Los Angeles Office) used mobile direction finding
equipment on August 27, 2009, to locate radio operations on 467.675
MHz emanating from Cerritos Ford's location at 18900 Studebaker Road,
Cerritos, California. On September 1, 2009, the Los Angeles agent
continued to monitor and determined the transmissions were voice
communications by employees of Cerritos Ford on 467.675 MHz, a
frequency not specified on Cerritos Ford's license for Station
WQKA311. Later that day, the Los Angeles agent spoke with the Cerritos
Ford Service Manager, who stated that Cerritos Ford believed that it
was operating on one of the five frequencies authorized by the Station
WQKA311 license. The Los Angeles agent then inspected two of the
handheld radios being used by Cerritos Ford and determined that one of
the five channels programmed into the radios had been programmed for
frequency 467.675 MHz. The manager ensured that the operation on
467.675 MHz ceased at that time.
3. On January 27, 2010, the Los Angeles Office issued a Notice of
Apparent Liability for Forfeiture (NAL) in the amount of $4,000 to
Cerritos Ford for operating on a frequency not authorized by its
license on August 27, 2009, and September 1, 2009. Cerritos Ford
responded to the NAL on February 24, 2010. In its Response, Cerritos
Ford argues that its violation was not willful, that it made a good
faith effort to comply with the Rules, and that it paid a third-party
radio company to program its radios to ensure no violations took
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining Cerritos Ford's response, Section
503(b) of the Act requires that the Commission take into account 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 other such matters as justice may
require. We considered Cerritos Ford's response to the NAL in light of
these statutory factors and find that neither cancellation nor
reduction of the forfeiture is warranted for the reasons discussed
5. Section 1.903(a) of the Rules provides that stations in the Wireless
Radio Service must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.903(b) provides
that the holding of an authorization does not create any rights beyond
the terms, conditions, and period specified in the authorization. The
Station WQKA311 license does not authorize Cerritos Ford to operate on
frequency 467.675 MHz. Nevertheless, a Los Angeles agent found that on
August 27, 2009, and September 1, 2009, Cerritos Ford personnel
operated on frequency 467.675 MHz at Cerritos Ford's location in
Cerritos, California. An inspection by the agent revealed that the
frequency 467.675 MHz was programmed into at least two handheld units
in operation by Cerritos Ford personnel.
6. Although Cerritos Ford does not dispute the factual findings in the
NAL, it contends that certain circumstances in this case nevertheless
justify cancellation of the forfeiture. Cerritos Ford first argues
that a third party was responsible for the violation because that
third party programmed the unauthorized frequency into the Cerritos
Ford radios. We disagree. Cerritos Ford acknowledges that a Los
Angeles agent previously warned the company about its prior
unauthorized operation on frequency 467.675 MHz and, in response,
Cerritos Ford obtained the Station WQKA311 license on March 3, 2009.
Cerritos Ford hired a radio company to supply it with handheld radios
using the licensed frequencies, and only realized that the radio
company had used the wrong frequency after the Los Angeles agent's
subsequent inspection on September 1, 2009. Thus, according to the
company, Cerritos Ford had no way of knowing it was in violation. But
Commission precedent has long held that "licensees are responsible for
the acts and omission of their employees and independent contractors,"
and thereby has consistently "refused to excuse licensees from
forfeiture penalties where the actions of employees or independent
contractors have resulted in violations." Consequently, even if we
accept Cerritos Ford's assertion that the radio company programmed the
wrong frequencies into the radios, the violations cannot be excused
because responsibility for compliance with its license ultimately
rests with Cerritos Ford.
7. Cerritos Ford also contends that the violation was not willful, yet
the company does not deny that its personnel transmitted on frequency
467.675 MHz on August 27, 2009, and September 1, 2009. Under the
applicable statute, the Commission need not demonstrate an intent to
violate a rule to make a finding that a licensee engaged in willful
misconduct. As stated in the NAL, Section 312(f)(1) of the Act, which
applies to violations for which forfeitures are assessed under Section
503(b) of the Act, provides that "[t]he term `willful,' when used with
reference to the commission or omission of any act, means the
conscious and deliberate commission or omission of such act,
irrespective of any intent to violate any provision of this Act or any
rule or regulation of the Commission authorized by this Act . . . ."
As the facts are undisputed that Cerritos Ford personnel operated
handheld radios on frequency 467.675 MHz on the dates in question
without Commission authorization, we find that its violation of
Section 1.903(a) of the rules was therefore, according to Commission
8. Cerritos Ford also argues that it made a good faith effort to comply
with the Rules, and to operate only on authorized frequencies. We do
not find that this is a basis for reduction of the proposed
forfeiture. Cerritos Ford's efforts to obtain an FCC license in 2009
came only after it was warned by a Los Angeles agent in 2008 that its
operations on GMRS frequency 467.675 MHz were unauthorized. The
Commission will generally only allow a good faith reduction when
attempts at compliance, however unsuccessful, were taken prior to an
inspection or involvement by the FCC.
9. We have examined Cerritos Ford's Response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Cerritos Ford
willfully and repeatedly violated Section 1.903(a) of the Rules.
Considering the entire record and the factors listed above, we find
that a forfeiture in the amount of $4,000 is warranted.
IV. ORDERING CLAUSES
10. 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(f)(4) of the Commission's Rules, Cerritos Ford
IS LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
dollars ($4,000) for willfully and repeatedly violating Section
1.903(a) of the Commission's Rules.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the U.S. Department of Justice
for collection pursuant to Section 504(a) of the Act. 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 number 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. Cerritos Ford shall also send
electronic notification on the date said payment is made to
12. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail Return Receipt
Requested to Cerritos Ford at 18900 Studebaker Road, Cerritos, CA
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 1.903(a).
Months prior to the instant investigation, the Cerritos Ford Service
Manager was orally warned by a Los Angeles Office agent about the
company's unlicensed operation on frequency 467.675 MHz. In response,
Cerritos Ford obtained a license for Station WQKA311 to operate on five
specific frequencies. The Commission granted the WQKA311 license to
Cerritos Ford on March 3, 2009. The license authorizes Cerritos Ford to
conduct mobile operations on 467.7625 MHz, 464.975 MHz, 463.2125 MHz,
461.6125 MHz, and 464.2125 MHz.
Cerritos Ford, File No. EB-09-LA-0094, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 201032900003 (Enf. Bur., Los Angeles Office,
rel. Jan. 27, 2010) (NAL).
See Response of Cerritos Ford (filed Feb. 24, 2010, in EB-09-LA-0094)
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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 (1997), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.903(b).
Frequency 467.675 MHz is a frequency available for use in the General
Mobile Radio Service (GMRS). See 47 C.F.R. S: 95.29. According to
Commission records, Cerritos Ford does not hold a GMRS license.
See Response at 1.
See id. at 1-2.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 (2002) (Eure); MTD, Inc., Memorandum Opinion and Order, 6
FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum Opinion and
Order, 35 FCC 2d 361 (1972); see also Rama Communications, Inc.,
Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (Enf. Bur. 2008)
("[W]here lapses in compliance occur, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify the licensee's rule
See Eure, 17 FCC Rcd at 21863-64 (quoting Triad Broadcasting Company,
Inc., Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984)).
47 U.S.C. S: 312(f)(1).
NAL at 2 n.5 (quoting Application for Review of Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
See, e.g., Sutro Broadcasting Corporation, Memorandum Opinion and Order,
19 FCC Rcd 15274, 15277 (2004) (stating that the Commission will generally
reduce the assessed forfeiture amount "based on the good faith corrective
efforts of a violator when those actions were taken prior to Commission
notification of the violation") (emphasis added); see also Starfish
Television Network, Forfeiture Order, 24 FCC Rcd 9147 (Enf. Bur. 2009)
(providing good faith reduction as to party's unlicensed operation because
operator submitted license application information to a consultant prior
to inspection); Blountstown Communications, Inc., Memorandum Opinion and
Order, 22 FCC Rcd 1097 (Enf. Bur. 2007) (provided good faith reduction as
to fencing violation because licensee was in the process of employing an
expert fence installer prior to the FCC inspection).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-115
Federal Communications Commission DA 12-115