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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Echonet Corporation ) File Number: EB-03-DV-020
Operator of Unlicensed ) NAL/Acct. No. 200332800011
Television ) FRN 0008-3792-16
Broadcast Translator Station )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
April 3, 2003
By the Acting District Director, Denver Office, Enforcement
1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that Echonet Corporation,
("Echonet"), has apparently repeatedly violated Section 301
of the Communications Act of 1934, as amended ("Act"),1 by
operating a television broadcast translator station without
Commission authorization. We conclude, pursuant to Section
503(b) of the Act,2 that Echonet is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
2. On October 22, 2002, an agent from the FCC's
Denver Office received information that a television
translator was operating on channel 49 in Cheyenne, Wyoming,
without a valid FCC station license. The agent monitored
transmissions on channel 49 in Cheyenne from October 22
through October 24, 2002, and observed retransmitted
broadcast television programming on the aural carrier
frequency of 685.7545 MHz.
3. On October 24, 2002, using direction finding
techniques, the agent located the station's transmitter on
the top floor of the Community First National Bank at 1800
Carey Avenue in Cheyenne, Wyoming. Evidence discovered
during the inspection revealed Echonet as the station
4. Review of the FCC's databases revealed that
Echonet held a license for K49AY, Facility ID 18475, granted
on July 10, 1986, for a television translator at coordinates
N41-08-04 latitude and W104-49-02 longitude. The license
for K49AY expired on October 1, 1998. Further review on
March 26, 2003, of the FCC's databases revealed no current
license issued for a television translator station to
operate on channel 49 in Cheyenne, Wyoming, and no pending
application or renewal application for channel 49 in
5. Section 503(b) of the Act provides that any person
who willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture
penalty.3 The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions
are committed knowingly and the term "repeated" means the
commission or omission of the Act more than once or for more
than one day.4
6. Section 301 of the Act sets forth generally that
no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio
within the United States except under and in accordance with
the Act and with a license granted under the provisions of
the Act. The Rules governing the licensing and operation of
television translator broadcast stations are set forth under
Subpart G of Part 74 of the Rules.5
7. Based on the evidence before us, we find that
Echonet repeatedly violated Section 301 of the Act by
operating a television translator broadcast station without
a valid license for over 4 years. The base forfeiture
amount set by The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, ("Forfeiture Policy Statement"),6
and Section 1.80 of the Commission's Rules,7 for operating
an unlicensed radio station is $10,000. In assessing the
monetary forfeiture amount, we must also take into account
the statutory factors set forth in Section 503(b)(2)(D) of
the Act,8 which include the nature, circumstances, extent,
and gravity of the violation(s), and with respect to the
violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement and
the statutory factors to the instant case, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS 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, Echonet Corporation, is hereby
NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of
Section 301 of the Communications Act of 1934, as
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY,
Echonet Corporation, SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment MUST INCLUDE the FCC
Registration number (FRN) and also must note the
NAL/Acct. No. referenced in the caption.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical
and Public Safety Division, 445 12th Street, S.W.,
Washington, D.C. 20554, and MUST INCLUDE THE NAL/Acct.
No. referenced in the caption.
12. 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 ("GAAP"); 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 submitted.
13. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
14. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002),
the FCC is engaged in a two-year tracking process
regarding the size of entities involved in forfeitures.
If you qualify as a small entity and if you wish to be
treated as a small entity for tracking purposes, please
so certify to us within thirty (30) days of this NAL,
either in your response to the NAL or in a separate
filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Technical & Public Safety
Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries,
meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities ("OCBO") set forth in Attachment A of this
Notice of Apparent Liability. This information will be
used for tracking purposes only. Your response or
failure to respond to this question will have no effect
on your rights and responsibilities pursuant to Section
503(b) of the Act. If you have questions regarding any
of the information contained in Attachment A, please
contact OCBO at (202) 418-0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail # 7001
0320 0002 9702 9417, Return Receipt Requested and First
Class Mail, to Echonet Corporation, P.O. Box 255,
Evergreen, Colorado, 80439.
Nikki P. Shears
Acting District Director,
Enclosure: Attachment A
cc: Charlie Ergen
5701 South Santa Fe Drive
Littleton, Colorado 80120
1 47 U.S.C. § 301.
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1),
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...." See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to Section 503(b), provides: "[t]he term
"repeated", when used with reference to the commission or
omission of any act, means the commission or omission of
such act more than once or, if such commission or omission
is continuous, for more than one day."
5 47 C.F.R. § 74.701 et seq.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. §§ 301 and 503(b); 47 C.F.R. §§ 0.111,
0.311 and l.80.
10 See 47 C.F.R. § 1.1914.