Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-011
More Enterprises Communications )
Network, Inc. ) NAL/Acct. No: 200532940008
San Diego, California )
) FRN: 0010-9017-34
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 More Enterprises Communications Network,
Inc. ("More Enterprises"), 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
21675.0 MHz and 22471.75 MHz.2 We conclude, pursuant to Section
503(b) of the Act,3 that More Enterprises is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On December 14, 2004, an agent from the Commission's
San Diego Office was investigating allegations that companies in
the San Ysidro 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 by More Enterprises Communications Network,
Inc., at an unattended transmitter site at 4630 Border Village
Road, San Diego, California. The frequency measurement showed
that this microwave radio station was operating on microwave
channel 21675.0 MHz.
3. A review of the Commission's database revealed that
More Enterprises had no authorization to operate a point-to-point
microwave radio station. However, a pending application, filed
by More Enterprises on September 2, 2004, for frequency 22471.75
MHz at the 4630 Border Village Road location was found.4
4. On January 25, 2005, the San Diego agent returned to
the More Enterprises site and again measured the microwave radio
station operating on microwave channel 21675.0 MHz. At this time
the agent conducted an inspection of the radio station with the
building management. The information provided by the building
management and others confirmed that this transmitter was
operated by More Enterprises.
5. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to More Enterprises concerning its operation
on an unauthorized frequency of 21675.0 MHz, in violation of
Section 301 of the Act. On March 23, 2005, an agent of the
Commission's San Diego Office returned to the More Enterprises
site at 4630 Border Village Road and found that the station was
operating on microwave channel 22471.75 MHz. The San Diego
Office received a reply to the LOI on April 8, 2005. In its
reply, More Enterprises acknowledges that it began operating this
microwave radio station in 2004 on 21675.0 MHz and that it has a
license application pending with the Commission. More
Enterprises also states that the equipment as installed had the
receiver and transmitter frequencies inadvertently switched as
the station should be operating on 22471.75 MHz.
6. A further review of the Commission's database revealed
that on August 17, 2005, the pending More Enterprises application
for a Private Operational Fixed Point-to-Point Microwave radio
station on 22471.75 MHz, located at 4630 Border Village Road, San
Diego, California, was granted under call sign WQDG363.
III. DISCUSSION
7. 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
8. 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 December 14, 2004, January 25, 2005, and March 23, 2005,
measurements made by San Diego agents revealed that More
Enterprises was operating a microwave radio station on microwave
channels 21675.0 MHz and 22471.75 MHz. A review of Commission
records indicated that More Enterprises had no authorization to
operate on 21675.0 MHz. The review also indicated that More
Enterprises had a pending application, but no authorization, to
operate on 22471.75 MHz until the license was granted on August
17, 2005. On April 8, 2005, More Enterprises acknowledged
operating a microwave station on the frequencies of 21675.0 MHz
and 22471.75 MHz since 2004. More Enterprises also acknowledged
that it had no authorization, only a pending application, to
operate such a station.7
9. More Enterprises 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
21675.0 MHz or 22471.75 MHz since the station became operational
in 2004. Therefore, More Enterprises' violation was willful.
The violation occurred on more than one day, therefore, it was
repeated. Based on the evidence before us, we find that More
Enterprises apparently willfully and repeatedly violated Section
301 of the Act by operating a microwave radio station without
authorization.
10. 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 $10,000.8 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 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we conclude
that More Enterprises is apparently liable for a forfeiture in
the amount of $10,000.
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, More
Enterprises Communications Network, Inc. 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.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, More
Enterprises Communications Network, 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. 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.
14. 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.
15. 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.
16. 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
17. 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 More
Enterprises Communications Network, Inc. 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. 0001861022.
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.''
7Pursuant 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 More Enterprises
in its application is not contained in these frequency bands.
Also, More Enterprises' proposed station is located approximately
0.64 km from the Mexican border.
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).
1047 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80.
11See 47 C.F.R. § 1.1914.