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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Central Wisconsin Joint Airport Board ) ) Notice of Apparent Liability for Forfeiture ) File No. 920EF0042 ) Unlicensed Operator of Marine Mobile Radio ) Services Station, Frequency 3058 MHz, in ) Mosinee, Wisconsin ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 28, 1999 Released: June 1, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction I 1. This is a Notice of Apparent Liability for Forfeiture, pursuant to Section 503(b) of the Communications Act of 1934 (the "Act"), as amended, and Section 1.80 of the Commission's Rules, against Central Wisconsin Joint Airport Board ("Airport Board") for operating an unlicensed radio station on maritime mobile radio service frequency 3058 MHz. For the reasons that follow, we find that the Airport Board operated this station without authorization, in apparent violation of Section 301 of the Act, and Section 80.13(a) of the Commission's Rules. We conclude that Central Wisconsin Joint Airport Board is apparently liable for a forfeiture in the amount of $8,000. II. Background 2. Central Wisconsin Airport ("CWA"), located in Mosinee, Wisconsin, and operated by the Airport Board, relies on a radar system located in Minneapolis for air traffic control data. Because the airport is located in a depression relative to Minneapolis, the Minneapolis radar cannot monitor air traffic near the airport once that traffic descends below 4,500 feet. To compensate for this problem, James Hansford, CWA airport manager, installed a Raytheon maritime radar system to "enhance the [air traffic] controllers [sic] ability to locate aircraft, heavy snow, and thunderstorms. . . ." Mr. Hansford represented in December 1997 that the radar system had been operational for almost two years. 3. In September 1997, Mr. Hansford sought Federal Aviation Administration ("FAA") approval of CWA's use of the maritime radar system for aircraft location purposes. FAA officials, concerned about potential safety problems associated with the unorthodox arrangement, refused to approve CWA's use of the radar. On November 26, 1997, FAA officials informed the Commission of the illegal use of the maritime radar system at CWA. The FAA asked the Commission to "take immediate action to terminate the radar system's operation." 4. In response, on December 3, 1997, an agent from the Commission's Compliance and Information Bureau ("CIB") confirmed that CWA was transmitting on the 3058 MHz frequency. The agent reviewed his files and noted that CWA did not have a license to operate the station. In a letter dated December 4, 1997, the agent advised Mr. Hansford that CWA was not authorized to operate on frequency 3058 MHz. The agent further advised Mr. Hansford that unlicensed operation of a radio transmitter is a violation of Section 301 of the Communications Act. 5. On December 10, 1997, Mr. Hansford wrote a responsive letter to the agent. Mr. Hansford explained that he had assumed that "marine radar did not need a license." He apologized for his misunderstanding and informed the agent that the Airport Board would shortly be submitting an application for a license. Mr. Hansford closed the letter by stating that "the unit has been operational for almost two years," and he requested permission to continue operating the unit during the licensing process. 6. In late December 1997, the Airport Board submitted an application for a license to operate one station at 3050 MHz, pursuant to Section 80.107 of the Commission's Rules. The application also requested a waiver of "such regulations as may be necessary so as to allow this radar unit at CWA to be licensed as an operational fixed station." On January 21, 1999, the Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division dismissed the application with prejudice and denied the waiver request. The Branch held that "the Commission will not issue a waiver to permit use of a marine radar unit for aviation related services without concurrence from the FAA." The Branch further noted that Section 80.107 of the Commission's Rules, which CWA referenced in its application, only permits message traffic to aircraft, not radar transmissions. On March 3, 1999, several weeks after the Commission dismissed the Airport Board's application, CIB agents observed CWA continuing to transmit on the 3058 MHz frequency. III. Discussion 7. Section 301 of the Act provides in pertinent part, "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 this Act and with a license in that behalf granted under the provisions of this Act." Similarly, Section 80.13(a) of the Commission's Rules provides in pertinent part that, "stations in the maritime service must be licensed by the FCC either individually or by fleet." Section 503(b) of the Act and Section 1.80 of the Commission's Rules further provide that a forfeiture penalty may be assessed against a person who is found to have willfully or repeatedly failed to comply with the Commission's rules. The Commission has held that an act or omission is "willful" if it is a conscious act or omission, whether or not there is any intent to violate the rule. 8. Based upon Mr. Hansford's admissions and the results of the Commission's investigation, we find that CWA operated a marine radar station without a license, even following notice that its request for a waiver had been denied. Such conduct is an apparent willful violation of Section 301 of the Act and Section 80.13(a) of the Commission's Rules. 9. The Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, provides that cases arising from facts that occurred prior to the effective date of the Forfeiture Policy Statement shall be decided on a case-by-case basis. Since the violations in question began in late 1995 or early 1996, when CWA installed the radar, we will determine the appropriate forfeiture using the case-by-case method. Section 503(b)(2)(D) of the Act requires that the Commission consider "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" when assessing a forfeiture. The Commission regularly imposes forfeitures for operating without a license. In prior cases of unauthorized use of maritime stations, such as Geof L. Bowser, 7 FCC Rcd 2540 (1992), the Commission proposed an $8,000 forfeiture against a commercial fisherman for a single incident of an unauthorized operation of a marine safety channel. Similarly, in John B. Hopper, 7 FCC Rcd 2391 (1992), the Commission imposed an $8,000 forfeiture against a ship owner for his unauthorized use of a marine station. In this case, an aggravating factor is the Airport Board's continued operation of the radar after being warned that such operation was illegal and after its application for authority had been dismissed. On the other hand, we believe that the Airport Board's intent in using the station to enhance aircraft safety and its prompt attempt to obtain authority after Mr. Hansford learned authority was necessary are mitigating factors. After taking into consideration all of the factors required by Section 503(b)(2)(D) of the Act -- including, but not limited to, the nature of the station in question, CWA's prompt submission of an application once it realized it needed to file an application for a license, and its subsequent operation of the frequency after notification that its waiver request had been denied, -- we believe an $8,000 forfeiture is appropriate for CWA's unauthorized operation. IV. Conclusion and Ordering Clauses 10. Based on the foregoing, we find that CWA operated a maritime mobile radio services station without proper authorization, in apparent violation of Section 301 of the Act and Section 80.13(a) of the Commission's Rules. We further find that a forfeiture in the amount of $8,000 is appropriate. 11. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission's Rules, Central Wisconsin Joint Airport Board is hereby NOTIFIED of this APPARENT LIABILITY FOR FORFEITURE in the amount of eight thousand dollars ($8,000) for willfully violating Section 301 of the Communications Act of 1934, as amended, and Section 80.13(a) of the Commission's Rules. 12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty days of the release of this Notice, Central Wisconsin Joint Airport Board SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 13. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to Central Wisconsin Joint Airport Board, 200 CWA Drive, Suite 201, Mosinee, Wisconsin 54455. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau