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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-043
Pacnet Incorporated )
San Diego (Otay), California ) NAL/Acct. No: 200532940010
)
) FRN: 0012-5042-13
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 Pacnet Incorporated ("Pacnet"), an
operator of a microwave radio station in the Otay Mesa area of
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 channel 22775.0 MHz.2 We conclude,
pursuant to Section 503(b) of the Act,3 that Pacnet is
apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On December 12, 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 unattended microwave radio site, leased
by Pacnet Incorporated, at 8675 Avenida Costa Norte - Suite A,
San Diego, California. The agent found that this microwave
radio station was operating on microwave channel 22775.0 MHz.
3. Another San Diego agent returned to the Pacnet site on
February 4, 2005, and measured the microwave radio station
operating on microwave channel 22775.0 MHz. An inspection was
attempted, but no one was available to make the station
available to the agent at that time.
4. On February 25, 2005, San Diego agents returned to the
Pacnet site and conducted an inspection of the radio station.
A consulting engineer for Pacnet located in Tijuana, Mexico was
contacted by the agents and this engineer provided additional
information concerning the Pacnet station. The engineer told
the agents that the station had been conducting tests for the
past week. The agent requested a copy of Pacnet's station
authorization for its microwave radio station, but none could
be produced.
5. A review of the Commission's database revealed that
Pacnet has no authorization to operate a point-to-point
microwave radio station at 8675 Avenida Costa Norte. However,
an application for license and a request for special temporary
authority were filed by Pacnet on February 28, 2005, for the
frequency 22475.0 MHz, operating from 8675 Avenida Costa Norte,
San Diego, California.4
6. A San Diego agent returned to the Pacnet site on March
3, 2005, and measured the microwave radio station operating on
microwave channel 22775.0 MHz. Another inspection was
attempted, but no one was available to make the station
available to the agent at that time.
7. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Pacnet concerning its authority to
operate on 22776.4 MHz.5 The San Diego Office received a reply
to the LOI on June 10, 2005. In its reply, Pacnet states that
the radio equipment was purchased from a Mexican court which
was auctioning the equipment of a company that had gone out of
business. Pacnet stated it did not know of any FCC licenses
held by that company. Pacnet further stated that it constructed
the microwave station temporarily for ``?...testing and
alignment purposes and verification and setting of
frequencies.'' Pacnet also stated that it will not operate,
other than for test purposes, until it receives an FCC license.
8. On March 23, 2005, a San Diego agent attempted to
measure the microwave transmitter at the Pacnet site and the
unit found was not operational. However, on August 9, 2005, a
San Diego agent again measured the microwave station operating
on microwave channel 22775.0 MHz at the Pacnet site.
III. DISCUSSION
9. 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
10. 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 12, 2004, February 4, 2005, and March 3,
2005, measurements made by San Diego agents revealed that
Pacnet was operating a microwave radio station on microwave
channel 22775.0 MHz. A review of Commission records indicated
that Pacnet had no authorization to operate on 22775.0 MHz. The
review also indicated that Pacnet has a pending application,
but no authorization, to operate on 22475.0 MHz. On June 10,
2005, Pacnet acknowledged operating a microwave station on
microwave channel 22775.0 MHz and acknowledged that it had no
license, only a pending application, to operate such a
station.8
11. Although Pacnet stated that its operation was
for ``testing purposes,'' our inspection reveals that Pacnet's
operation had been continuing for at least 90 days and resumed
in August 2005. Pacnet was aware licensing for its station was
required, as evidenced by its license application and its
response to the LOI. Therefore, Pacnet'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 Pacnet apparently willfully and repeatedly
violated Section 301 of the Act by operating a microwave radio
station without authorization.
12. Pacnet does not appear to have a license to operate the
microwave station in question, however, Pacnet apparently
continues to operate the station. We will therefore direct
Pacnet to file a report with the District Director of the San
Diego Office detailing whether Pacnet is continuing to operate
the microwave station described in this NAL and pursuant to what
authority.
13. 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 $10,000.9 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.10 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we conclude
that Pacnet is apparently liable for a forfeiture in the amount
of $10,000.
IV. ORDERING CLAUSES
14. 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, Pacnet
Incorporated 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.11
15. 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, Pacnet
Incorporated SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
16. IT IS FURTHER ORDERED that Pacnet Incorporated SHALL
FILE, within thirty (30) days of the release of this NAL, a
report with the District Director, San Diego Office, detailing
whether Pacnet is continuing to operate the microwave station
described in this NAL and pursuant to what authority.
17. 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.
18. 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.
19. 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.
20. 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. 20554.12
21. 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 Pacnet
Incorporated 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.
2See 47 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
4See File Nos. 0002060640 (license application) and 000206644
(STA), filed February 28, 2005. A modification to the license
application was filed by Pacnet on June 2, 2005, to change the
requested microwave frequency to 22075.0 MHz. According to
Commission records, the STA request was returned on June 1, 2005
and the modified license application was returned on August 23,
2005.
522776.4 MHz is within the maximum allowable tolerance of
microwave channel 22775.0 MHz. See 47 C.F.R. § 101.147(s).
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.''
8Pursuant 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 frequencies proposed for use by Pacnet in its
applications are not contained in these frequency bands. Also,
Pacnet's proposed station is located approximately 1.06 km from
the Mexican border.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
1147 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80.
12See 47 C.F.R. § 1.1914.