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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
File No.: EB-SED-13-00009464
NAL/Acct. No.: 201032100030
* MEMORANDUM OPINION AND ORDER
Adopted: March 13, 2014 Released: March 13, 2014
By the Chief, Enforcement Bureau:
We dismiss CruiseEmail's late-filed Petition seeking reconsideration of a Forfeiture Order, which assessed a forfeiture of fifteen thousand dollars ($15,000) on the company for willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended (Act), and Section 1.903(a) of the Commission's rules (Rules). The violations, which are undisputed, involved CruiseEmail's operation of three Public Coast Stations at locations other than their licensed locations without prior Commission authorization. Further, as explained below, even if the Petition were timely filed, we find no basis for reconsidering the Forfeiture Order. We therefore affirm the Forfeiture Order.
On June 11, 2010, the Enforcement Bureau's Spectrum Enforcement Division (Division) issued a Notice of Apparent Liability for Forfeiture (NAL) of $15,000 against CruiseEmail for its apparent willful and repeated violations of Section 301 of the Act and Section 1.903(a) of the Rules. Pursuant to CruiseEmail's request, the Division granted a 60-day extension of the deadline for filing a response to the NAL. CruiseEmail, however, neither filed an NAL response nor paid the $15,000 forfeiture. As a result, on February 7, 2013, the Division issued a Forfeiture Order against CruiseEmail for the full forfeiture amount. On the date of release, the Division published the Forfeiture Order in the Commission's Daily Digest; mailed a copy of the Forfeiture Order to CruiseEmail via First Class Mail, return receipt requested; and e-mailed a copy of the Forfeiture Order to CruiseEmail, thus notifying CruiseEmail of the 30-day response deadline for filing a petition for reconsideration.
On or before February 11, 2013, CruiseEmail contacted Division staff to request copies of all documents that it had previously filed with the Division. CruiseEmail noted that its request was for the purpose of preparing a petition for reconsideration. On February 20, 2013, the Division sent CruiseEmail the various record information requested, including a copy of its response to the Division's Letter of Inquiry, a copy of the NAL, and a copy of the Forfeiture Order. The Division also reminded CruiseEmail of the March 11, 2013 filing deadline for the petition. On February 21, 2013, CruiseEmail asked the Division for a copy of other "letters" that the company had previously submitted to the Division, and the Division forwarded them to CruiseEmail on February 21, and 27, 2013.
On March 8, 2013, CruiseEmail requested a 45-day extension of the March 11, 2013 filing deadline, asserting that an extension was necessary due to its loss of power (including phone and internet service) during the preceding four days and also because CruiseEmail believed that "two major documents [were] missing," though it did not specify which two documents. In response, the Division informed CruiseEmail that, in general, the Division lacked discretionary authority to extend the deadline for filing petitions for reconsideration and, thus, the Commission needed to receive any petition that CruiseEmail intended to file by the March 11, 2013 deadline. The Division further informed CruiseEmail that, if necessary, it could subsequently file a supplement to a timely petition (if one were filed) that the Division would then consider accepting in due course. CruiseEmail filed its Petition on March 18, 2013, seven days after the March 11, 2013 deadline.
Section 405(a) of the Act, as implemented by Section 1.106(f) of the Rules, requires a petitioner to file its petition for reconsideration within 30 days of public notice of Commission action. For non-rulemaking documents released by the Commission, such as the Forfeiture Order issued in this proceeding, public notice occurs upon the date of its release -- i.e., February 7, 2013. Thus, as the Division repeatedly informed CruiseEmail, the statutory deadline for filing a petition for reconsideration of the Forfeiture Order was March 11, 2013. Because CruiseEmail filed its Petition after the expiration of this statutory deadline, the statute requires us to dismiss it.
In so holding, we find that the Commission's narrow discretionary authority to waive or extend the statutory deadline in circumstances involving procedural unfairness is not applicable here. This exception, as articulated by the United States District Court of Appeals for the D.C. Circuit, covers situations in which the Commission's failure to provide timely personal notice of the pending action is in "substantial measure" the cause of the untimeliness of the petition. To show causation, the petitioner must show that upon receiving actual notice, it was "impossible reasonably" to file the petition within the time remaining and that the petition (or request for extension) was filed promptly thereafter.
CruiseEmail has not argued -- nor could it successfully argue -- that any defect in serving the Forfeiture Order caused the untimeliness of its Petition. As discussed above, CruiseEmail had 30 days to file a petition for reconsideration. CruiseEmail contacted the Division within two business days of release of the Forfeiture Order and expressed its intention to file a response thereto. CruiseEmail's last-minute extension request -- received one business day prior to the statutory deadline -- forestalls any finding that CruiseEmail promptly moved for reconsideration after receiving actual notice. Finally, CruiseEmail's purported bases for filing late (i.e., a four-day loss of power immediately preceding its extension request and its need to obtain and review copies of its prior filings) do not otherwise show procedural unfairness warranting extension of the statutory deadline.
Even if we could accept CruiseEmail's late-filed Petition, its failure to raise material error or new (or previously unavailable) evidence precludes us from considering it. In its Petition, CruiseEmail argues that the Division's assessment of forfeiture liability with respect to Station WGM is inequitable because CruiseEmail complied with a prior Wireless Bureau directive to file an application to amend the station's license to reflect its new operating location. The Division's Forfeiture Order, however, imposed liability for the station's relocation and subsequent operation for approximately four years prior to the filing of the amendment application. Neither the amendment nor the Wireless Bureau's formal or informal advice authorizes such unauthorized operation retroactively, and thus, we find no material error in the Division's assessment of forfeiture liability for such operation.
For the reasons set forth above, we hold that the Bureau lacks the authority to accept CruiseEmail's late-filed Petition. Furthermore, even if the Bureau could accept the late-filed Petition, the arguments therein do not provide any basis for reconsideration of the forfeiture. We therefore dismiss CruiseEmail's late-filed Petition and thereby affirm the Division's Forfeiture Order in its entirety.
ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, and 1.106 of the Commission's rules, the Petition for Reconsideration of the Forfeiture Order filed on March 18, 2013 by CruiseEmail is hereby DISMISSED and the Forfeiture Order IS AFFIRMED.
IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, and 1.80 of the Commission's rules, CruiseEmail IS LIABLE FOR A MONETARY FORFEITURE in the amount of fifteen thousand dollars ($15,000) for willful and repeated violation of Section 301 of the Communications Act of 1934, as amended, and Section 1.903(a) of the Commission's rules.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's rules on or before March 31, 2014. The case may also be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Communications Act of 1934, as amended. On the date said payment is made, CruiseEmail shall send electronic notification of payment to Nissa Laughner at Nissa.Laughner@fcc.gov, Daudeline Meme at Daudeline.Meme@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov.
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 CruiseEmail should follow based on the form of payment CruiseEmail selects:
* 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.
Any request for full payment under an installment plan over time 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.
IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order shall be sent by First Class and Certified Mail, Return Receipt Requested, to Dr. John S. Gregory, Chief Executive Officer, CruiseEmail, P.O. Box 95, HC64Box191, Hillsboro, WV 24946.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison