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-008
Pacnet Incorporated )
San Diego (San Ysidro), ) NAL/Acct. No: 200532940011
California )
) 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 San Diego, California,
(San Ysidro area) 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 22625.0 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 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 at an unattended microwave radio site, leased
by Pacnet Incorporated, at 4650 Border Village Road, San Diego,
California. The frequency measurement of this microwave radio
station revealed the station was operating on microwave channel
22625.0 MHz.
3. The San Diego agent returned to the Pacnet site on
January 25, 2005, and measured the microwave radio station
operating on microwave channel 22625.0 MHz. An inspection was
attempted, but no one was available to make the station
available to the agent at that time. However, the building
management staff told the agent that Pacnet was the owner of
the microwave radio station.
4. A review of the Commission's database revealed that
Pacnet has no authorization to operate a point-to-point
microwave radio station at 4650 Border Village Road. However,
a request for special temporary authority (``STA'') was filed
by Pacnet on February 2, 2005, for the frequency 22625.0 MHz at
this transmitter site, followed by a license application for
the same frequency at the same location on February 4, 2005.4
On February 15, 2005, the Commission requested that Pacnet
supply additional information to support its STA request.
5. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Pacnet concerning its operation on an
unauthorized frequency of 22625.0 MHz, in violation of Section
301 of the Act. On March 23, 2005, a San Diego agent returned
to the Pacnet site and measured the microwave radio station
operating on microwave channel 22625.0 MHz.
6. On April 14, 2005, Pacnet submitted a request to the
Commission to withdraw its pending application for a microwave
radio station at 4650 Border Village Road. On May 15, 2005,
Pacnet's request for STA was dismissed because no reply was
received to the request for additional information.
7. 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 if the equipment had
any FCC authorizations. Pacnet further stated that it operated
the microwave station temporarily for ``?...testing and
alignment purposes and verification and setting of
frequencies.'' Pacnet also stated that it had decided not to
pursue an authorization for this microwave station.
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.5 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.6
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 December 14, 2004, January 25, 2005, and March 23,
2005, measurements made by San Diego agents revealed that
Pacnet was operating a microwave radio station on the frequency
22625.0 MHz. A review of Commission records indicated that
Pacnet had no authorization to operate on 22625.0 MHz. The
review also indicated that Pacnet had a pending application,
but withdrew it from consideration. On June 10, 2005, Pacnet
acknowledged operating a microwave radio station on microwave
channel 22625.0 MHz and acknowledged that it had no license,
only a pending application, to operate such a station.7
10. 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.
Pacnet was aware licensing for its station was required, as
evidenced by its license application. 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. Further, because Pacnet does
not appear to have a license to operate the microwave station
in question, we will 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.
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 $10,000.8 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 Pacnet 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,
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.10
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, 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
19. 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.
247 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
4See File No. 0002032007, filed February 2, 2005 (STA
Application) and File No. 0002031935, filed February 4, 2005
(License Application).
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 Pacnet in its
applications is not contained in these frequency bands. Also,
Pacnet's proposed station is located approximately 1.06 km from
the Mexican border.
8 12 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.