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Federal Communications Commission
Washington, D.C. 20554
) File No.: EB-11-SE-102
In the Matter of
) NAL/Acct. No.: 201232100034
Emigrant Storage LLC
) FRN: 0021058938
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 31, 2012 Released: July 31, 2012
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
Emigrant Storage LLC (Emigrant), former licensee of Private Land
Mobile Radio Service (PLMRS) station WPKM212, Reno, Nevada, apparently
liable for a forfeiture in the amount of twenty thousand dollars
($20,000) for its 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 Emigrant's operation of PLMRS station
WPKM212 for more than nine years without the required Commission
authority and its associated failure to timely file an application to
renew the station's license.
2. On April 15, 1997, Emigrant was granted a license to operate station
WPKM212 for five years through April 15, 2002, the expiration date of
the station's license. On January 22, 2002, the Commission's Wireless
Telecommunications Bureau (Wireless Bureau) sent Emigrant a courtesy
"renewal reminder" notice for station WPKM212, alerting Emigrant that
it was required to file a renewal application for the station prior to
the expiration of the station's license if it planned to continue
operation. Emigrant failed to file a renewal application for station
WPKM212 prior to the license expiration date. In the absence of such
filing, Emigrant's license for station WPKM212 automatically
terminated on the April 15, 2002 expiration date. More than nine years
later, on July 31, 2011, Emigrant filed with the Wireless Bureau a
request for Special Temporary Authority (STA), stating that it had
recently discovered that its license for station WPKM212 had expired
and that the STA was necessary for its continued operation. On August
3, 2011, the Wireless Bureau granted the STA until January 30, 2012
under call sign WQOB527. On August 23, 2011, Emigrant filed an
application for a new PLMRS station license, which was granted on
October 3, 2011.
3. Because it appeared that Emigrant operated station WPKM212 after the
expiration of its license, the Wireless Bureau referred this matter to
the Enforcement Bureau for investigation and possible enforcement
action. On April 26, 2012, the Spectrum Enforcement Division of the
Enforcement Bureau issued a letter of inquiry (LOI) to Emigrant,
directing the company to submit a sworn written response to a series
of questions relating to Emigrant's failure to file an application for
renewal of the WPKM212 license and to Emigrant's continued operation
of the station after the expiration of the station license.
4. Emigrant responded to the LOI on May 3, 2012 (LOI Response). In its
LOI Response, Emigrant states that on or about July 19, 2011, Emigrant
received a telephone call from another wireless operator stating that
Emigrant's radio communications "were coming through" on the
operator's frequencies and that Emigrant's license for station WPKM212
had expired. According to Emigrant, its failure to renew the license
for station WPKM212 was an "oversight." Emigrant also admitted that it
continued to operate the station after the April 15, 2002 license
expiration date, explaining that it was not aware that the station
license had expired. Emigrant asserts that it filed its STA request
"promptly" after the telephone call from the other wireless operator
and that its STA was granted approximately two weeks later.
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, Emigrant was required to maintain its
authorization in order to continue to operate station WPKM212.
Emigrant has admitted that it failed to renew its license and that it
continued to operate station WPKM212 without Commission authority for
more than nine years, from April 15, 2002, when the license expired,
until August 3, 2011, when its request for STA was granted. Although
Emigrant argues that its failure to file for the renewal of the
station's authorization was an "oversight," it is well established
that administrative oversight or inadvertence is not a mitigating
factor. By operating station WPKM212 after the license had expired,
Emigrant apparently violated Section 301 of the Act and Section
1.903(a) of the Rules. Emigrant also apparently violated Section
1.949(a) of the Rules by failing to timely file a renewal application
for station WPKM212.
7. Section 503(b)(1)(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 or for more than one day. Based on
the record before us, it appears that Emigrant's apparent violations
of Section 301 of the Act and Sections 1.903(a) and 1.949(a) of the
Rules are both willful and repeated.
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." 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 base forfeiture amounts for Emigrant's
violations-$10,000 for Emigrant's continued operation of station
WPKM212 without Commission authority and $3,000 for Emigrant's failure
to file the renewal application for its station within the time period
specified in Section 1.949(a) of the Rules, for a total base
forfeiture of $13,000.
9. Given the totality of the circumstances, and consistent with the
Forfeiture Policy Statement, we conclude that a significant upward
adjustment of the base forfeiture is warranted. In this regard, we
are particularly mindful that Emigrant's apparent unlawful operation
continued for more than nine years-from April 15, 2002, the date that
the license for station WPKM212 expired, until August 3, 2011, the
date that Emigrant's STA was granted. In fact, the period of
unauthorized operation was nearly twice the length of the initial
license term. As the Commission has emphasized, "[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."
In addition, we decline to downward adjust the forfeiture based on
Emigrant's claims that the violation resulted from "oversight" and a
change in personnel. Consistent with longstanding precedent,
Emigrant's lack of knowledge or erroneous belief does not warrant a
downward adjustment of the forfeiture. We note, however, that the
severity of the apparent violations is slightly mitigated
by Emigrant's non-dilatory actions in seeking the necessary operating
authority when confronted by a third party with evidence of its
expired license. While the record indicates that it was not
Emigrant's own diligence that led to the discovery of the
violation, Emigrant's efforts to come into compliance preceded the
Bureau's investigation and the initiation of enforcement action.
Based on all the factors and evidence, including the extended duration
of the violation, we propose an aggregate forfeiture of $20,000.
IV. ordering clauses
10. 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, Emigrant Storage LLC
IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty thousand dollars ($20,000) for the willful and
repeated violation of Section 301 of the Act and Sections 1.903(a) and
1.949(a) of the Rules.
11. 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, Emigrant Storage LLC 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 14 below.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Emigrant Storage LLC shall send electronic
notification of payment to Susan German and Ricardo Durham at
Susan.German@fcc.gov and Ricardo.Durham@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e mail, ARINQUIRIES@fcc.gov.
14. 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/Account Number referenced in the caption. The statement must
also be emailed to Susan German at Susan.German@fcc.gov and to Ricardo
Durham at Ricardo.Durham@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.
15. 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 William A. Manke, Sr., Owner, Emigrant
Storage LLC, 2500 Longley Lane, Reno, NV 89502.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a), 1.949(a).
See Automated Renewal Reminder Letter from the FCC Wireless
Telecommunications Bureau, to Emigrant Storage LLC, Reference No. 1250367
(Jan. 22, 2002).
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.").
See File No. 0004821825.
The Wireless Bureau granted the STA without prejudice to any enforcement
action related to the unauthorized operation of station WPKM212. See id.
See File No. 0004850131.
See Letter from John D. Poutasse, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Bill Manke, Owner, Emigrant Storage Corporation
(Apr. 26, 2012).
See Letter from Carol Reno, Supervisor, Emigrant Storage, to Susan German,
Spectrum Enforcement Division, FCC Enforcement Bureau (May 3, 2012).
Id. at 1-2 (claiming that it did not receive the courtesy renewal reminder
and that the company "had a change of personnel over the years").
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).
See Southern California Broad. Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387, 4387, para. 3 (1991), recon. denied, 7 FCC Rcd 3454 (1992)
(Southern California) (stating that "inadvertence ... is at best,
ignorance of the law, which the Commission does not consider a mitigating
47 U.S.C. S: 503(b)(1)(B).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1), (2). See also Southern California, 6 FCC Rcd
at 4388, para. 5 (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).
While Section 503(b)(6) of the Act generally 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 Emigrant's
misconduct occurred over an extended period (during the more than nine
year period between 2002 and 2011) 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, para. 8 (2000); see also BASF
Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
17300, 17302, para 9 (Enf. Bur. 2010) (forfeiture paid) (BASF
Corporation); Call Mobile, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 74, 76, para 10 (Enf. Bur. 2011) (response pending) (Call Mobile).
The apparent unlawful operation in this case continued from April 15, 2002
(the license expiration) through August 3, 2011 (the STA grant).
Therefore, the forfeiture amount we propose herein relates to Emigrant's
apparent continuing violations that ceased during the past year.
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, 17100, para. 27 (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, para. 22 (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, para 15 (2004).
In the past, the Commission has upwardly adjusted the base forfeiture in
cases where the unauthorized operation continued for an extended period of
time. See BASF Corporation, 25 FCC Rcd at 17303, para. 11 (five years of
unauthorized operation); Shubat Transportation Company, Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 3782, 3786, para. 13 (Enf. Bur.
2011) (six years of unauthorized operation); Call Mobile, 26 FCC Rcd at
77, para. 12 (two and a half years of unauthorized operation). In a
recent decision, however, one of the Bureau's divisions addressed an
apparent violation of Section 301 of Act involving an extended period of
unauthorized operation by proposing a limited upward adjustment. See
Harrah's Atlantic City Operating Co., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd. 5153 (Enf. Bur., Northeast Region
2011) (Harrah's). On reflection, we believe that the forfeiture
penalty proposed in Harrah's was unduly low in light of the nearly ten
years of continuous unauthorized operation and other circumstances in the
case. See 47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(5)
(listing circumstances and extent of a violation as factors in assessing a
forfeiture). The relative duration of a violation is a critical factor;
for example, we generally would propose a substantially higher forfeiture
for a violation lasting nearly a decade than for a violation lasting for
two months. In doing so, we avoid creating perverse incentives
and encourage PLMRS and other licensees to monitor their license
expiration dates and to timely seek renewal or otherwise take appropriate
steps to quickly come into compliance with FCC rules. See BASF
Corporation, 25 FCC Rcd at 17303, para. 10 (noting that reduced forfeiture
amounts applied in past cases do not appear to be creating sufficient
incentives for all PLMRS licensees to comply).
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, para. 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"). As a result, Emigrant's assertion that it did not
receive the courtesy renewal reminder does not mitigate its apparent
violation. See LOI Response.
See supra note 12 and accompanying text.
See, e.g., Profit Enterprises, Inc., Forfeiture Order, 8 FCC Rcd 2846,
2846, para. 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 Broad. Serv., Inc., Memorandum Opinion and Order, 37
FCC 2d 437, 438, para. 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., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 12933,
12935, para. 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 Broad. Group, Inc.,
Memorandum Opinion and Order, 8 FCC Rcd 784, 784, para. 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 47 C.F.R. S: 1.80(b)(4), Note to Paragraph (b)(4): Adjustment Criteria
for Section 503 Forfeitures (establishing "good faith or voluntary
disclosure" as a downward adjustment factor).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a), 1.949(a).
47 C.F.R. S: 1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 12-1224
Federal Communications Commission DA 12-1224