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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-031
Anderson Desk Company )
San Diego, California ) NAL/Acct. No: 200532940002
)
) FRN: 0009-9808-55
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September
28, 2005
By the District Director, San Diego Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Anderson Desk Company ("Anderson"), in San
Diego, California, apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended
(``Act''),1 by operating an unlicensed microwave radio station on
microwave channels 21225.0 MHz and 22461.25 MHz.2 We conclude,
pursuant to Section 503(b) of the Act,3 that Anderson is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On February 4, 2005, an agent from the Commission's
San Diego Office was investigating allegations that companies in
the Otay Mesa area of San Diego were using unauthorized microwave
radio stations to communicate with sister companies across the
U.S. - Mexico border in Tijuana, Mexico. The agent monitored and
measured the transmissions of a microwave radio station operated
at an office occupied by Anderson Desk Company, a manufacturer of
office furniture, at 7510 Airway Road, San Diego, California.
The frequency measurement of this microwave radio station was
21224.0 MHz.
3. A review of the Commission's database revealed that
Anderson has no authorization to operate a point-to-point
microwave radio station. However, a pending application, filed
by Anderson on September 23, 2004, for frequency 22461.25 MHz at
the 7510 Airway Road location was found.4
4. The San Diego agent returned to the Anderson office on
February 9, 2005, and again made measurements showing that the
microwave radio station was operating on the microwave channel
21225.0 MHz.5 An inspection was attempted, but no one was
available to make the station available for inspection at that
time.
5. On February 28, 2005, the San Diego agent returned to
the Anderson office and again measured the microwave radio
station operating on microwave channel 21225.0 MHz. At this time
the agent conducted an inspection of the radio station with an
Anderson staff member. The agent requested a copy of Anderson's
station authorization for its microwave radio station, but only a
copy of the September 23, 2004, pending application could be
found at the Anderson office.
6. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Anderson concerning its operation on an
unauthorized frequency of 21224.0 MHz, in violation of Section
301 of the Act.6 The San Diego Office received a reply to the
LOI on March 23, 2005. In its reply, Anderson states that this
radio station was used for internal business communications
between Anderson's U.S and Mexican facilities. Anderson
acknowledges that it began operating this microwave radio station
in 2000 on frequency 22461.25 MHz and had replaced some defective
equipment in December 2004. At that time, frequency 21224.0 MHz
was installed. Anderson further states that the repaired unit is
now back in service and that ``the operation frequency is
22461.25.'' Anderson also acknowledged that its pending
application for authority to operate on 22461.25 MHz had not yet
been granted.
7. On May 20, 2005, Anderson's pending application was
granted under the call sign of WQCT534 for frequency 22461.25
MHz. However, the licensed geographical coordinates for WQCT534
do not match the coordinates of the actual transmitter location
of 7510 Airway Road, San Diego, California. The difference
between the two locations is approximately 3.95 km.
III. DISCUSSION
8. 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. The term "willful" as
used in Section 503(b) of the Act has been interpreted to mean
simply that the acts or omissions are committed knowingly.7 The
term ``repeated'' means the commission or omission of such act
more than once or for more than one day.8
9. Section 301 of the Act requires that no person shall use
or operate any apparatus for the transmission of energy of
communications or signals by radio within the United States
except under and in accordance with the Act and with a license.
On February 4, 2005, February 9, 2005, and February 28, 2005,
measurements made by a San Diego agent revealed that Anderson was
operating a microwave radio station on the frequency 21224.0 MHz.
A review of Commission records indicated that Anderson had no
authorization to operate on 21224.0 MHz. The review also
indicated that Anderson had a pending application, but no
authorization, to operate on 22461.25 MHz. On March 23, 2005,
Anderson acknowledged operating a microwave station on the
frequencies of 22461.25 MHz and 21224.0 MHz since 2000. Anderson
also acknowledged that it had no license, only a pending
application, to operate such a station.
10. Anderson was aware licensing for its station was
required, as evidenced by its license application, and admits
that its microwave radio station has been operating on either
22461.25 or 21224.0 MHz since it was first installed in 2000.
Therefore, Anderson's violation was willful. The violation
occurred on more than one day, therefore, it was repeated. Based
on the evidence before us, we find that Anderson apparently
willfully and repeatedly violated Section 301 of the Act by
operating a microwave radio station without authorization.
11. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amount for operation without an instrument of authorization for
the service is $10,000.9 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 violations, 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.10 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we conclude
that Anderson is apparently liable for a forfeiture in the amount
of $10,000.
12. We will also require Anderson to file a report with the
District Director of the San Diego Office concerning Anderson's
efforts to bring its microwave radio station into compliance with
the terms of its authorization for station WQCT534.
Specifically, Anderson must detail how it has relocated its
transmitter to the coordinates specified in the station
authorization, or how it has amended its authorization to
accurately reflect the location of the transmitter.
IV. ORDERING CLAUSES
13. 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,
Anderson Desk Company is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violation of Section 301 of the Act.11
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Commission's Rules, within thirty (30) days of the release
date of this Notice of Apparent Liability for Forfeiture,
Anderson Desk Company SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
15. IT IS FURTHER ORDERED that Anderson Desk Company SHALL
FILE, within thirty (30) days of the release of this Notice, a
report with the District Director, San Diego Office, concerning
Anderson Desk Company's efforts to come into compliance with the
authorization for station WQCT534, as detailed above.
16. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
17. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
San Diego Office, 4542 Ruffner Street, Suite 370, San Diego,
California 92111, within thirty (30) days from the release date
of this Notice of Apparent Liability for Forfeiture and must
include the NAL/Acct. No. referenced in the caption.
18. 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.
19. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.12
20. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Anderson
Desk Company at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
247 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
4See File No. 0000281783. Pursuant to Sections 101.31(b)(1) and
101.31(b)(1)(v) of the Rules, 47 C.F.R. §§ 101.31(b)(1),
101.31(b)(1)(v), certain applicants for point-to-point microwave
stations, not located within 56.3 kilometers of any international
border, operating in certain frequency bands, are deemed to have
conditional authority to operate their proposed stations during
the pendency of their applications. The frequency proposed for
use by Anderson Desk in its application is not contained in these
frequency bands. Also, Anderson Desk's proposed station is
located approximately 1.5 km from the Mexican border.
5The actual measurement made by the agent showed that the station
was operating on 21224.0 MHz.
621224.0 MHz is within the maximum allowable tolerance of
microwave channel 21225.0 MHz. See 47 C.F.R. § 101.147(s).
7Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
8 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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.''
9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
1147 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80.
12See 47 C.F.R. § 1.1914.