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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-04-SD-187
Kojo Worldwide Corporation )
San Diego, California ) NAL/Acct. No: 200532940005
)
) FRN: 0011-1635-16
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 Kojo Worldwide Corporation ("Kojo"), an
operator of a microwave radio station 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
22355.0 MHz and 22471.75 MHz.2 We conclude, pursuant to
Section 503(b) of the Act,3 that Kojo is apparently liable for
a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On November 18, 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 the offices of Kojo Worldwide Corporation,
at 9654 Siempre Viva Road, San Diego, California. The
frequency measurement showed that this microwave radio station
was operating on microwave channel 22355.0 MHz. At this time,
the agent conducted an inspection of the radio station with the
Kojo staff. The agent requested a copy of Kojo's station
authorization for its microwave radio station, but none could
be produced.
3. On December 1 and 2, 2004, the San Diego agent returned
to the Kojo site and again measured the microwave radio station
operating on the microwave channel 22355.0 MHz. No inspection
was attempted on either day.
4. A review of the Commission's database revealed that
Kojo has no authorization to operate a point-to-point microwave
radio station at 9654 Siempre Viva Road. Kojo does have a
pending application for license, filed November 1, 2004, for
operation on 22471.75 MHz for this transmitter site (``2004
Application'').4 Kojo previously submitted three applications
for microwave radio stations in 2001. However, all three
applications were dismissed in 2001 as failing to submit the
required application filing fee.5 In each of the dismissal
letters, Kojo was cautioned that ``[i]f you are currently
operating under authority provided by the Commission's Rules
based on your submission of the above referenced application,
you must immediately cease operation until such time as you
come into compliance with the Rules.''
5. On December 17, 2004, the San Diego Office sent a
Notice of Unlicensed Operation (``NOUO'') to Kojo concerning
its unauthorized operation on 22355.57 MHz, in violation of
Section 301 of the Act.6 The San Diego Office received a reply
to the NOUO from Kojo's attorney on December 27, 2004.
6. In this reply, the attorney states that Kojo attempted
to apply for a microwave radio station in 2001. During this
same time period, the attorney had another client who attempted
to apply for a microwave radio station in the same area in
order to communicate with a sister office in Mexico. According
to the attorney, this other client attempted to obtain a
special temporary authority (``STA'') but was not granted one.
The attorney states that he was informed by the Commission's
International Bureau that ``(1) it would not be issuing any
more STA's, and (2) there would be no further enforcement
actions initiated by field offices regarding unlicensed cross-
border 23 GHz systems.''7 The attorney then states that he
gave this advice to Kojo as well. Upon receiving the NOUO, the
attorney states that Kojo ceased operation of the microwave
radio station in question and filed for special temporary
authority (``2004 STA Request'') to allow its operation.
7. On March 24, 2005, and on August 9, 2005, San Diego
agents returned to the Kojo site and found the microwave radio
station operational but now on microwave channel 22471.75 MHz,
the frequency specified in their 2004 Application. On August
18, 2005, the pending Kojo application for a Private
Operational Fixed Point-to-Point Microwave radio station on
22471.75 MHz, located at 9654 Siempre Viva Road, San Diego,
California, was granted under call sign WQDG466.
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.8 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.9
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 November 18, 2004, December 1, 2004 and December 2, 2004,
measurements made by San Diego agents revealed that Kojo was
operating a microwave radio station on microwave channel
22355.0 MHz. On March 24, 2005 and August 9, 2005,
measurements made by San Diego agents revealed that Kojo was
operating a microwave radio station on microwave channel
22471.75 MHz. A review of Commission records indicated that
Kojo had no authorization to operate on microwave channel
22355.0.MHz. The review also indicated that Kojo had a
pending application, but no authorization, to operate on
microwave channel 22471.75 MHz until August 18, 2005.10
10. Kojo was aware licensing for its microwave station
was required, as evidenced by its 2004 Application and 2004 STA
Request and as evidenced by the three dismissal letters it
received from the Commission in 2001. Assuming arguendo that
Commission staff did advise Kojo's counsel that there would be
no further enforcement actions initiated by field offices
regarding unlicensed cross-border 23 GHz systems in 2001,
Kojo's reliance on this advice in 2004 and 2005 is misplaced.
Licensing for cross-border microwave stations was taking place
in 2004 and 2005, the period during which the San Diego Office
agents observed and questioned Kojo's unauthorized operations.
On December 27, 2004, when confronted with its unauthorized
operation on microwave channel 22355.0 MHz by the San Diego
Office, Kojo replied that it had taken the microwave station in
question out of operation. Follow-up investigation by the San
Diego Office revealed that Kojo continued to operate the
microwave station, on microwave channel 22471.75 MHz, after
agents visited the Kojo site on March 24, 2005 and on August 9,
2005. Therefore, Kojo'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 Kojo 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 $10,000.11 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.12 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors, we
conclude that Kojo is apparently liable for a forfeiture in the
amount of $10,000.
IV. ORDERING CLAUSES
12. 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,
Kojo Worldwide Corporation 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.13
13. 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, Kojo Worldwide Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
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. 20554.14
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
Kojo Worldwide Corporation 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. 0001919664.
5See File No. 0000432307, dismissed June 8, 2001; File No.
0000477582, dismissed June 19, 2001; and File No. 00000506891,
dismissed July 18, 2001.
622355.57 MHz is within the maximum allowable tolerance of
microwave channel 22355.0 MHz. See 47 C.F.R. § 101.147(s).
7We note that the attorney indicates that this advice was given
orally and nothing was given to him in writing.
8Section 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).
9 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.''
10Pursuant 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 Kojo in its
applications is not contained in these frequency bands. Also,
Kojo's proposed station is located approximately 0.75 km from the
Mexican border.
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1247 U.S.C. § 503(b)(2)(D).
1347 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80.
14See 47 C.F.R. § 1.1914.