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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 bycheck or 
money order may be mailed to Federal Communications Commission, 
P.O. Box358340,Pittsburgh, PA 15251-8340. Payment by overnight 
mail may be sent toMellon Bank/LB358340,500 Ross Street, Room 
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be 
made to ABA Number043000261, receiving bankMellon Bank, and 
account number911-6106.  

     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.