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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Robert Schmidt dba RSISP Licensee of Station WQMN655,
Ponce, Puerto Rico ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00001225
NAL/Acct. No.: 2013326800002 FRN: 0020106373
Adopted: October 23, 2013 Released: October 23, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of three thousand dollars ($3,000) to Robert Schmidt dba
RSISP (RSISP), licensee of Station WQMN655, in Ponce, Puerto Rico, for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act), and Sections 1.903 and 90.1307 of the
Commission's rules (Rules).^ The noted violations involved RSISP's
failure to register two communications sites prior to putting them
2. On February 12, 2013, the Enforcement Bureau's San Juan Office (San
Juan Office) issued a Notice of Apparent Liability for Forfeiture
(NAL) ^ for twelve thousand dollars ($12,000) to RSISP for operating
transmitters in the 3650-3700 MHz band at two sites without Commission
authorization.^ As reflected in the NAL, although the Rules and terms
of RSISP's license require registration of all fixed or base stations
prior to operation, RSISP operated radio transmitters in the 3650-3700
MHz band from sites in Juana Diaz and Ponce, Puerto Rico, on March 16
and 21, 2012.^ The Juana Diaz and Ponce sites were not posted or
registered in the FCC's Universal Licensing System (ULS) for Call Sign
WQMN655 until April 26, 2012.^ In response to the NAL, RSISP requests
cancellation or reduction of the proposed forfeiture because: (1) it
erroneously thought it had registered its sites prior to March 2012;
(2) it thought it had received permission to operate temporarily
without authorization while it transitioned its customers to another
system; and (3) it cannot afford to pay the $12,000 forfeiture.^
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining RSISP's response, Section
503(b)(2)(E) 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
4. We affirm the NAL's finding that RSISP violated Section 301 of the Act
and Sections 1.903 and 90.1307 of the Rules.^ Section 301 of the Act
states that no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio except
under and in accordance with a license.^ Section 1.903 of the Rules
states that a "[s]tation in the Wireless Radio Service must be used
and operated only in accordance with the rules applicable to their
particular service as set forth in this title and with a valid
authorization granted by the Commission"; and that "[t]he holding of
an authorization does not create any rights beyond the terms,
conditions and period specified in the authorization."^ Section
90.1307 of the Rules states: "[t]he 3650-3700 MHz band is licensed on
the basis of non-exclusive nationwide licenses," and that "[a]
licensee cannot operate a fixed or base station before registering it
under its license . . . ."^ The license for Station WQMN655 also
clearly states that it "does not authorize any operation of a fixed or
base station that is not posted by the FCC as a registered fixed or
base station" in the ULS.^
5. It is undisputed that RSISP operated radio transmitters in the
3650-3700 MHz band from sites in Juana Diaz and Ponce, Puerto Rico, on
March 16 and March 21, 2012. It is also undisputed that the Juana Diaz
and Ponce sites were not posted or registered in the ULS for Call Sign
WQMN655 until April 26, 2012. In its response to the NAL, RSISP
attempts to justify the violations based on its erroneous
understanding about the status of the registration and its ability to
operate temporarily, but such explanations do not serve to justify or
mitigate the violations. Although RSISP submitted amendments to
register its sites prior to March 15, 2012, a licensee cannot operate
in conformity with its amendment applications based on the assumption
that the applications will later be granted.^ Moreover, its erroneous
beliefs that it had registered its sites or that it could operate on
an unlicensed basis until it transitioned its customers to other
systems^ are irrelevant to whether it willfully operated on an
unlicensed basis. 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.^ RSISP clearly
intended to operate its systems from the Juana Diaz and Ponce sites on
March 16 and March 21, 2012.^ Thus, its violations were willful and
repeated. Therefore, based on the evidence before us, we conclude that
RSISP willfully and repeatedly violated Section 301 of the Act and
Sections 1.903 and 90.1307 of the Rules by operating transmitters in
the 3650-3700 MHz band at two sites without Commission authorization.
6. RSISP, in its response to the NAL, also asserts that it is unable to
pay the $12,000 forfeiture because of its financial circumstances.
With regard to an individual's or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture.^ Based on the
financial documents provided by RSISP, we find sufficient basis to
reduce the forfeiture to $3,000.^ However, we caution RSISP that a
party's inability to pay is only one factor in our forfeiture
calculation analysis, and is not dispositive.^ We have previously
rejected inability to pay claims in cases of repeated or otherwise
egregious violations.^ Therefore, future violations of this kind may
result in significantly higher forfeitures that may not be reduced due
to RSISP's financial circumstances.
IV. ORDERING CLAUSES
7. 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, Robert Schmidt
dba RSISP IS LIABLE FOR A MONETARY FORFEITURE in the amount of three
thousand dollars ($3,000) for violations of Section 301 of the Act and
Sections 1.903 and 90.1307 of the Commission's rules.^
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date 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 enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Robert Schmidt dba RSISP shall send
electronic notification of payment to SCR-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account Number and FRN referenced above. 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
* 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.
8. Any request for making full payment over time 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.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Robert
Schmidt dba RSISP at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 301; 47 C.F.R. SS 1.903, 90.1307.
^ Robert Schmidt dba RSISP, Notice of Apparent Liability for Forfeiture,
28 FCC Rcd 1082 (Enf. Bur. 2013) (NAL). A comprehensive recitation of the
facts and history of this case can be found in the NAL and is incorporated
herein by reference.
^ Id. at 1082-83, paras. 2-5.
^ Id. at 1083, para. 6.
^ Letter from Robert Schmidt to the San Juan Office, South Central Region,
Enforcement Bureau at 1-2 (filed March 20, 2013, in
EB-FIELDSCR-12-00001225) (NAL Response).
^ 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 Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL, supra note 2.
^ 47 U.S.C. S 301.
^ 47 C.F.R. S 1.903(a) & (b).
^ 47 C.F.R. S 90.1307.
^ See Universal Licensing System, License Call Sign WQMN655.
^ See 47 U.S.C. S 301. See also Ace of Hearts Disc Jockey Service, Inc.,
Memorandum Opinion and Order, 28 FCC Rcd 1095 (Enf. Bur. 2013).
^ We note that the written warning provided to RSISP stated "ANY
OPERATIONS IN THE 3650-3700 MHz BAND MUST CEASE UNTIL YOUR REGISTRATIONS
ARE POSTED BY THE FCC." RSISP, Warning of Unlicensed Operations (Mar. 19,
2012) (on file in EB-FIELDSCR-12-00001225) (emphasis in original). The
agent also stated in an e-mail on March 21, 2012, that "[a]ll non
registered sites should be taken off the air immediately." See e-mail from
Reuben Jusino, Resident Agent, San Juan Office, South Central Region,
Enforcement Bureau, to Robert Schmidt (Mar. 21, 2012, 5:14 p.m.) (on file
^ 47 U.S.C. S 312(f)(1).
^ RSISP also argues that a reduction of the forfeiture is justified
because (it asserts) it was working to stop operations on March 21, 2012,
and succeeded in doing so at 1:35 a.m. on March 22, 2013. See NAL Response
at 1-2. We disagree. The fact that RSISP ceased operations in the early
morning hours of March 22, 2012, does not negate the fact that it operated
on March 21, 2012, in violation of the Rules.
^ See Local Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting
Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 19. In its
response to the NAL (at 1-2), RSISP states that a reduced forfeiture
should be considered because its failed efforts to register its sites
prior to March 16, 2012, nevertheless demonstrated good faith attempts to
comply with the Rules. Because we are already reducing the forfeiture
based on RSISP's inability to pay, and the reduction provided in this case
is well beyond any reduction it would otherwise receive for its good faith
argument, we need not address this claim. See, e.g., Entertainment Media
Trust, Forfeiture Order, 28 FCC Rcd 2181, 2184 & n.22 (Enf. Bur. 2013).
^ See 47 U.S.C. S 503(b)(2)(E) (requiring the Commission to 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 such other matters as justice may
^ See, e.g., Whisler Fleurinor, Forfeiture Order, 28 FCC Rcd 1087 (Enf.
Bur. 2013) (affirming $25,000 forfeiture and rejecting inability to pay
claim because violator was previously afforded a reduction based on
inability to pay, but later committed the same violation). Accord Kevin W.
Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that
violator's repeated acts of malicious and intentional interference
outweigh evidence concerning his ability to pay claim), aff'd, Memorandum
Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013) (further request for
reconsideration pending); Hodson Broadcasting Corp., Forfeiture Order, 24
FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee's continued
unauthorized operation outweighed its inability to pay claim).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 1.903, 90.1307.
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-2050
Federal Communications Commission DA 13-2050