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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-04-SD-190
International Customs Brokers, )
Inc. ) NAL/Acct. No: 200532940004
Licensee of WNTT908 )
San Diego, California ) FRN: 0012-2586-20
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 International Customs Brokers, Inc.
("ICB"), licensee of station WNTT908, in San Diego, California,
apparently willfully and repeatedly violated Section 1.903(a)
of the Commission's Rules ("Rules")1 by operating microwave
radio transmitting equipment on an unauthorized microwave
channel of 21585.0 MHz.2 We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"),3
that ICB is apparently liable for a forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. On December 3, 2004, 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 International Customs
Brokers, Inc. at 2215 Paseo de las Americas, San Diego,
California. The frequency measurement showed that this
microwave radio station was operating on microwave channel
21585.0 MHz.
3. The agent had a discussion with the ICB's radio
equipment technician and was advised that there was an
authorization for this microwave radio station. The
authorization was WNTT908, issued to Global Manufacturing
Services for microwave channel 22125.0 MHz at a nearby address
of 9830 Siempre Viva Road, San Diego, California. Also, there
was a pending application to transfer this station to ICB.4 On
December 21, 2004, the Commission granted ICB's request for
assignment and issued a license to ICB under call sign WNTT908,
but with the original microwave channel and station location.
4. The agent returned to the ICB office on February 17,
2005, and again measured the frequency of the microwave radio
station. The measurement indicated that the station was
operating on microwave channel 21585.0 MHz. On February 27,
2005, the San Diego Office sent a Letter of Inquiry (``LOI'')
to ICB concerning its unauthorized operation on microwave
channel 21585.0 MHz, in violation of Section 1.903(a) of the
Commission's Rules. On March 10, 2005, the manager of ICB
visited the FCC's San Diego Office to discuss the LOI and he
was advised to submit his response in writing.
5. On March 24, 2005, an agent of the Commission's San
Diego Office found that station WNTT908 was still operating on
microwave channel 21585.0 MHz. On August 10, 2005, an agent
of the Commission's San Diego Office returned to the ICB office
and confirmed that station WNTT908 was now operating on the
authorized microwave channel of 22125.0 MHz.
III. DISCUSSION
6. 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.5 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.6
7. Section 1.903(a) of the Rules requires that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular
service, and with a valid authorization granted by the
Commission. On December 3, 2004, February 17, 2005 and March
24, 2005, San Diego agents determined that ICB was operating
microwave radio station WNTT908 on the unauthorized microwave
channel of 21585.0 MHz. Agents made ICB aware that its station
was operating on the wrong frequency and at the wrong address.
ICB, however, failed to make necessary corrections for several
months.
8. ICB was aware of the licensed frequency for WNTT908 but
failed to operate on it. Therefore, its violation was willful.
The violation occurred on more than one day, therefore, it was
repeated. Based on the evidence before us, we find that ICB
apparently willfully and repeatedly violated Section 1.903(a)
of the Rules by operating a microwave radio station on an
unauthorized microwave channel of 21585.0 MHz.
9. 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 using an unauthorized frequency is $4,000.7 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.8 San Diego agents have confirmed ICB is
now operating on its authorized frequency. The Commission has
stated in the past that a licensee is expected to correct
errors when they are brought to the licensee's attention and
that such correction is not grounds for a downward adjustment
in the forfeiture.9 Accordingly, applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors, we
conclude that ICB is apparently liable for a forfeiture in the
amount of $4,000.
10. We will also require ICB to file a report with the
District Director of the San Diego Office concerning ICB's
efforts to bring its microwave radio station into compliance
with terms of its authorization for station WNTT908.
Specifically, ICB 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
11. 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,
International Customs Brokers, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for violation of Section 1.903(a) of
the Rules.10
12. 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, International Customs Brokers, Inc. 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 International Customs
Brokers, Inc., SHALL FILE, within thirty (30) days of the
release of this Notice, a report with the District Director,
San Diego Office, concerning International Customs Brokers,
Inc.'s efforts to come into compliance with the authorization
for station WNTT908, as detailed above.
14. 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.
15. 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.
16. 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.
17. 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. 20554.11
18. 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
International Customs Brokers, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 1.903(a).
247 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
4See File No. 0001961221.
5Section 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).
6Section 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.''
712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
847 U.S.C. § 503(b)(2)(D).
9AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
1047 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).
11See 47 C.F.R. § 1.1914.