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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-03-SD-007
Global Radio, Inc. ) NAL/Acct. No.
Licensee of Station WN3XFL ) 200332940003
San Diego, California ) FRN: 000-869-2170
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 28, 2003
By the Enforcement Bureau: San Diego Office
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find that Global Radio, Inc. (``Global''), the licensee of
Experimental Broadcast station WN3XFL, apparently willfully
violated Sections 301 of the Communications Act of 1934,1 as
amended (``Act'') and Section 74.103(c) of the Commission's Rules
(``Rules''),2 by operating radio transmitting equipment on
unauthorized frequencies of 88.98, 104.1 and 106.9 MHz. We
conclude, pursuant to Section 503(b) of the Act, that Global is
apparently liable for forfeiture in the amount of twelve thousand
dollars ($12,000).
II. BACKGROUND
2. On January 23, 2003, the FCC's Media Bureau granted Global an
experimental FM license to operate on frequencies 93.7 and 96.9
MHz under call sign WN3XFL for a limited time from Qualcomm
Stadium in San Diego, California. The FCC Media Bureau
specifically denied Global's request for authority to operate on
four other channels, 89.1, 92.9, 104.1 and 106.9 MHz, because of
possible interference to existing broadcast stations in Mexico
and United States. In a subsequent search of FCC records no
other operating authority was issued by the Media Bureau to
Global, either in writing or verbally, to operate on any
additional FM broadcast radio channels.
3. On January 26, 2003, during the Super Bowl XXXVII event at
Qualcomm Stadium in San Diego, California, an agent from the
Federal Communications Commission's (``FCC'') San Diego office
noted that FM special broadcast event station WN3XFL was active
on its two assigned frequencies of 93.7 and 96.9 MHz. However,
the agent observed that WN3XFL was also operating on 88.98, 104.1
and 106.9 MHz. Using direction finding techniques the agent
determined that the signals were coming from Qualcomm Stadium.
III. DISCUSSION
4. Section 503(b) of the Act provides that any person who
willfully fails to comply substantially with the terms and
conditions of any license, or willfully 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.4
5. 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.
6. Section 74.103(c) of the Rules states that licensees in the
Experimental Broadcast radio services may be assigned to operate
on regularly assignable broadcast channels and those requests are
reviewed by the FCC for possible impact upon regularly licensed
stations. In this case the FCC determined that only two of the
broadcast channel requested would be authorized and issued an
authorization letter accordingly.
7. Based on the evidence before us, we find that Global operated
radio transmitting equipment on unauthorized frequencies of
88.98, 104.1 and 106.9 MHz on January 26, 2003 in willful
violation of Section 301 of the Act and Section 74.103 of the
Rules. Pursuant to The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines,5 the base forfeiture amount for an
unauthorized use of a frequency is $4,000. 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,
which include the nature, circumstances, extent, and gravity of
the violation(s), and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require.6 Because three
unauthorized frequencies were in use at the same time, we are
applying the base forfeiture specified in Section 1.80(b)(4) of
the Rules for each of the three unauthorized frequency uses.
Applying the statutory factors to the instant case, we find a
total forfeiture in the amount of $12,000 is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
the Act, and Sections 0.111, 0.311 and 1.80 of the Commission's
Rules, Global Radio, Inc., is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of twelve thousand
dollars ($12,000) for violating Section 301 of the Act and
Section 74.103 Commission's Rules.7
9. 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, Global Radio, Inc., 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 should note
the NAL/Account number and FRN 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, DC 20554 and must
include the NAL/Acct. number 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; 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 Receivable Operation Group, 445 12th Street,
S.W., Washington, D.C. 20554.8
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 this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to
Global Radio, Inc., 1275 First Avenue No. 125, New York, New
York, 10021.
FEDERAL COMMUNICATIONS
COMMISSION
William R. Zears Jr.
District Director - San Diego Office
Enc: Attachment A
Attachment A
October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 74.103(c).
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 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).
5 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 301; 47 C.F.R. §§ 0.111, 0.311, 1.80, and 74.103.
8 See 47 C.F.R. § 1.1914.