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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-042
Pacific Spanish Network Inc. )
Chula Vista, California ) NAL/Acct. No: 200532940009
)
) FRN: 0012-4695-57
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 Pacific Spanish Network Inc. ("Pacific
Spanish"), an operator of a microwave radio station in Chula
Vista, 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 channel 22473.5 MHz.2 We conclude, pursuant to
Section 503(b) of the Act,3 that Pacific Spanish is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On March 8, 2005, the Commission's San Diego Office
began its investigation of allegations that Pacific Spanish
Network Inc., at 296 H Street, Chula Vista, California, was
operating an unauthorized microwave radio station. An agent
from the San Diego office monitored and measured the
transmissions of a microwave radio station operated at Pacific
Spanish's offices in Chula Vista. The frequency measurement
showed that this microwave radio station was operating on
microwave channel 22473.5 MHz.
3. A review of the Commission's database revealed that
Pacific Spanish has no authorization to operate a point-to-
point microwave radio station at 296 H Street. Pacific Spanish
did have a pending license application, filed January 13, 2005,
for operation on 22473.5 MHz for this transmitter site
(``January 2005 Application'').4 However, this application
was dismissed on March 1, 2005, for failure to make a payment
on a delinquent debt. In the dismissal letter, Pacific Spanish
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.''
4. On March 9, 2005, another San Diego agent returned to
the Pacific Spanish offices and measured the microwave radio
station operating on microwave channel 22473.5 MHz. The agent
conducted an inspection of the radio station with the Pacific
Spanish staff. The agent requested a copy of Pacific
Spanish's station authorization for its microwave radio
station, but none could be found, only the dismissed January
2005 Application. Subsequently, agents determined that on
March 10, 2005, Pacific Spanish filed a license application
(``March 2005 Application'') for operation of a microwave radio
station at 296 H Street, Chula Vista, California, on 22473.5
MHz.5
5. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Pacific Spanish concerning its
operation on an unauthorized frequency of 22473.5 MHz, in
violation of Section 301 of the Act. On March 18, 2005,
Pacific Spanish filed an application for special temporary
authorization (``STA Application'') for operation of a
microwave radio station at 296 H Street, Chula Vista,
California, for the frequency of 22473.5 MHz.6 On March 23,
2005, San Diego agents returned to the Pacific Spanish site and
found the microwave radio station operational on microwave
channel 22473.5 MHz.
6. The San Diego Office received a reply to the LOI on
March 25, 2005. In its reply, Pacific Spanish indicates this
microwave station has been operational since February 2005. It
also indicated that because its STA Application will not be
approved by the Commission, it has stopped operating the
microwave station as of March 24, 2005.
7. On June 6, 2005, the March 2005 Application was granted
and Pacific Spanish was issued a station authorization, call
sign WQVC596.
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 March 8, 2005, March 9, 2005, and March 23, 2005,
measurements made by San Diego agents revealed that Pacific
Spanish was operating a microwave radio station on microwave
channel 22473.5 MHz. A review of Commission records indicated
that Pacific Spanish had no authorization to operate on 22473.5
MHz until June 6, 2005.9
10. Pacific Spanish was aware licensing for its
microwave station was required, as evidenced by its three
applications and as evidenced by the dismissal letter it
received from the Commission in March 2005. Therefore, Pacific
Spanish'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 Pacific Spanish 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 $10,000.10 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.11 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors, we
conclude that Pacific Spanish 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,
Pacific Spanish 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.12
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, Pacific Spanish 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.
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. 20554.13
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
Pacific Spanish 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. 0002006216.
5See File No. 0002073942.
6See File No. 0002091865.
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).
8Section 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.''
9Pursuant 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 Pacific Spanish
in its applications is not contained in these frequency bands.
Also, Pacific Spanish's proposed station is located approximately
10.6 km from the Mexican border.
1012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1147 U.S.C. § 503(b)(2)(D).
1247 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80.
13See 47 C.F.R. § 1.1914.