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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-04-SD-191
Norman Krieger Inc. )
Licensee of WQCC468 ) NAL/Acct. No: 200532940006
San Diego, California )
) FRN: 0010-6274-87
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 Norman Krieger Inc. ("Krieger"), licensee
of station WQCC468, 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
21375.0 MHz.2 We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),3 that Krieger
is apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000).
II. BACKGROUND
2. On December 1, 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 Norman Krieger Inc.,
a manufacture of hotel bedding and fabrics, at 9635 Heinrich
Hertz Drive, San Diego, California. The frequency measurement
showed that this microwave radio station was operating on
microwave channel 21375.0 MHz
3. The agent returned to the Krieger office on February
25, 2005, and again measured the frequency of the microwave
radio station. The microwave channel for this measurement was
again 21375.0 MHz. A review of the Commission's database
revealed that Krieger has authorization to operate a Private
Fixed Point-to-Point Microwave radio station under license
WQCC468 at the location. However, the authorized frequency for
station WQCC468 is 22461.25 MHz. The agent also inspected the
microwave radio station. The Krieger staff provided the agent
of copy of the station authorization, WQCC468, the following
day. The station authorization indicated that the authorized
frequency for station WQCC468 is 22461.25 MHz.
4. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Krieger concerning its unauthorized
operation on 21377.74 MHz, in violation of Section 1.903(a) of
the Commission's Rules.4 On March 24, 2005, an agent of the
Commission's San Diego Office returned to the Krieger office
and found that station WQCC468 was operating on its authorized
frequency of 22461.25 MHz. The San Diego Office received a
reply to the LOI on April 1, 2005. The reply stated that this
radio station was used for Krieger's internal business
communications between their U.S and Mexican facilities.
Krieger stated that the receiver and transmitter frequencies of
the microwave radio station had been installed backwards and
that the improper operation on 21375.0 MHz began in November of
2003.5 Krieger also indicated that the receiver and
transmitter frequencies had been corrected.
III. DISCUSSION
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. 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.6 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.7
6. 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 1, 2004, and February 25, 2005, San
Diego agents determined that Krieger was operating microwave
radio station WQCC468 on the unauthorized frequency of 21375.0
MHz. Further, Krieger admits that its microwave radio station
had been operating on 21375.0 MHz ever since it was first
installed in 2003.
7. Krieger was aware of the licensed frequency for WQCC468
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 Krieger apparently willfully and repeatedly
violated Section 1.903(a) of the Rules by operating a microwave
radio station on an unauthorized frequency of 21375.0 MHz.
8. 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 $4,000.8 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.9 We note that in its reply to the LOI,
Krieger acknowledges that it was operating on the wrong
frequency and that it has since corrected the problem. 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.10 Additionally, a
licensee is required to operate on the frequency stated in its
authorization.11 Accordingly, applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we conclude
that Krieger is apparently liable for a forfeiture in the
amount of $4,000.
IV. ORDERING CLAUSES
9. 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,
Norman Krieger 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.12
10. 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, Norman Krieger Inc. SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. 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.
12. 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.
13. 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.
14. 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. 20554.13
15. 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 Norman
Krieger 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).
2See 47 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
421377.74 MHz is within the maximum allowable tolerance of
microwave channel 21375.0 MHz. See 47 C.F.R. § 101.147(s).
5According to Commission's records, however, the reciprocal
frequency for the WQCC468 license is 21229.25 MHz.
6Section 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).
7Section 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.''
812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
947 U.S.C. § 503(b)(2)(D).
10AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
11Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
1247 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).
13See 47 C.F.R. § 1.1914.