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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-003
Tocabi America Corporation )
Licensee of WPXB706 ) NAL/Acct. No: 200532940012
Chula Vista, California )
) FRN: 0007-2934-83
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 Tocabi America Corporation ("Tocabi"),
licensee of station WPXB706, in Chula Vista, California,
apparently willfully and repeatedly violated Section 1.903(a) of
the Commission's Rules ("Rules")1 by operating microwave radio
transmitting equipment on an unauthorized microwave channel of
22455.0 MHz and at an unauthorized location.2 We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"),3 that Tocabi is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On January 4, 2005, an agent from the Commission's
San Diego Office was investigating allegations that companies in
the Chula Vista, California were using unauthorized microwave
radio stations to communicate with sister companies across the
U.S. - Mexico border in Tijuana, Mexico. The agent attempted to
monitor and measure the transmissions of a microwave radio
station operated at the geographical coordinates as specified in
the station authorization WPXB706 for Tocabi America Corporation,
a manufacturer of furniture cabinets.4 No microwave radio
station was found at this location.
3. On January 11, 2005, another agent from the
Commission's San Diego Office continued the investigation of the
Tocabi microwave radio station. The agent found the Tocabi office
at 755 Main Street, Chula Vista, California, approximately 4.75
kilometers east of the authorized location.5 The agent monitored
the microwave radio station and found the station operating on
microwave channel 22455.0 MHz.6 However, a review of the
Commission's database revealed that Tocabi has no authorization
or pending application to operate a point-to-point microwave
radio station on microwave channel 22455.0 MHz in Chula Vista,
California. The station authorization for WPXB706 specifies
frequency 23400.0 MHz.
4. The San Diego agent returned to the Tocabi office on
February 18, 2005, and again measured the microwave radio station
operating on microwave channel 22455.0 MHz. At this time the
agent conducted an inspection of the microwave radio station with
a Tocabi staff member. A copy of FCC license for WPXB706 posted
at the transmitter site was given to the agent, indicating the
authorized frequency as 23400.0 MHz.
5. On February 27, 2005, the San Diego Office sent a
Letter of Inquiry (``LOI'') to Tocabi concerning its unauthorized
operation on 22455.86 MHz in Chula Vista, California.7 The San
Diego Office received a reply on March 11, 2005. In its reply,
Tocabi states that the operating frequency for station WPXB706
was misprogrammed by the company that installed the microwave
station and that the consultant had submitted incorrect
coordinates in its application to the Commission.
6. On March 23, 2005, a San Diego agent monitored
23400.0 MHz in Chula Vista and found that station WPXB706 was
operating on its authorized frequency. Additionally, a review of
the Commission's database revealed that on July 5, 2005, Tocabi
filed an application to modify the WPXB706 license to accurately
reflect the station's current location.8
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.9 The
term ``repeated'' means the commission or omission of such act
more than once or for more than one day.10
8. Section 1.903(a) of the Rules requires that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service,
and with a valid authorization granted by the Commission. On
January 11, 2005 and February 18, 2005, San Diego agents
determined that Tocabi was operating a microwave radio station,
WPXB706, on the unauthorized frequency of 22455.0 MHz. Also, the
San Diego agents determined that Tocabi was operating microwave
radio station WPXB706 approximately 4.75 kilometers east of its
authorized location. Further, Tocabi acknowledged in its reply
to the LOI that the station was operating on an unauthorized
frequency at the wrong location.
9. Tocabi was aware of the licensed frequency and proper
location for WPXB706 but failed to operate on that frequency or
location. Therefore, its violations were willful. The
violations occurred on more than one day, therefore, they were
repeated. Based on the evidence before us, we find that Tocabi
apparently willfully and repeatedly violated Section 1.903(a) of
the Rules by operating a microwave radio station on an
unauthorized frequency of 22455.0 MHz and at an unauthorized
location.
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 using an unauthorized frequency is $4,000.11 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.12 We note
that in its reply to the LOI, Tocabi acknowledges that it was
operating on the wrong frequency at an unauthorized location.
San Diego agents have confirmed Tocabi is now operating on its
authorized frequency, and has submitted an application to modify
its authorized location. The Commission has stated in the past
that a licensee is expected to correct errors when they are
brought to the licensee's attention and that such correction is
not grounds for a downward adjustment in the forfeiture.13
Additionally, a licensee is required to operate on the frequency
stated in its authorization.14 Finally, a licensee is
responsible and liable for a violation of the Rules, even if the
cause of the violation was errors by its consultant.15
Accordingly, applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors, we conclude that Tocabi is
apparently liable for a forfeiture in the amount of $4,000.
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, Tocabi
America Corporation is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of four thousand dollars ($4,000)
for violation of Section 1.903(a) of the Rules.16
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, Tocabi
America Corporation 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. 20554.17
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 Tocabi
America Corporation at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 1.903(a).
247 C.F.R. § 101.147(s).
347 U.S.C. § 503(b).
4The coordinates on the WPXB706 authorization are 32°35'38.2''
north latitude and 117°04'04.9'' west longitude.
5The coordinates for this location are 32°35'37'' north latitude
and 117°01'02'' west longitude.
6The actual measurement made by the agent showed the station to
be operating on 22455.86 MHz.
722455.86 MHz is within the maximum allowable tolerance of
microwave channel 22455.0 MHz. See 47 C.F.R. § 101.147(s).
8See File No. 0002226777. Pursuant 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 used by
Tocabi are not contained in these frequency bands. Also,
Tocabi's proposed station is located approximately 5.6 km from
the Mexican border.
9Section 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).
10Section 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).
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1247 U.S.C. § 503(b)(2)(D).
13AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76
(2002).
14Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
15Wagenvoord Broadcasting Co., 35 FCC 2d 361, 361-62 (1972).
1647 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).
17See 47 C.F.R. § 1.1914.