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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File Number: EB-05-SD-010
Uniradio Corp. )
San Diego, California ) NAL/Acct. No: 200532940013
)
) FRN: 0010-6218-29
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 Uniradio Corporation ("Uniradio"), in 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 channels 21225.0 MHz and 22464.75 MHz.2 We conclude,
pursuant to Section 503(b) of the Act,3 that Uniradio 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 by Uniradio at an unattended transmitter site at
4630 Border Village Road, San Diego, California. The frequency
measurement revealed that this microwave radio station was
operating on microwave channel 21225.0 MHz.
3. A review of the Commission's database revealed that
Uniradio has no authorization to operate a point-to-point
microwave radio station. However, a pending license application,
filed by Uniradio on May 19, 2004 and amended on September 29,
2004, for frequency 22464.75 MHz at the 4630 Border Village Road
location was found.4
4. On January 25, 2005, the San Diego agent returned to
the Uniradio site and found the microwave radio station operating
on microwave channel 21225.0 MHz. At this time, the agent
conducted an inspection of the radio station with the building
management. The information provided by the building management
and others confirmed that this transmitter was operated by
Uniradio.
5. On March 11, 2005, the San Diego Office sent a Letter
of Inquiry (``LOI'') to Uniradio concerning its operation on an
unauthorized frequency of 21225.0 MHz, in violation of Section
301 of the Act. On March 23, 2005, an agent of the Commission's
San Diego Office returned to the Uniradio site at 4630 Border
Village Road and found that the station was operating on
microwave channel 22464.75 MHz. The San Diego Office received a
reply to the LOI on April 19, 2005. In its reply, Uniradio stated
that it ``never had or applied for an authorization or license to
transmit in the U.S. at the 21225 MHz frequency'' and that it
began operating the station on 21225 MHz in May 2004. It
acknowledged that it had a pending application to use 22464.75
MHz. Uniradio indicated that the equipment company that
installed the radio transmitter had inadvertently switched the
receiver and transmitter frequencies as the station should be
operating on 22464.75 MHz. Finally, Uniradio stated that they
have applied to the FCC for a special temporary authority and
they have corrected the transmitter frequency error.
6. Agents confirmed that Uniradio did apply for a special
temporary authority on March 22, 2005.5 The pending Uniradio
application for a Private Operational Fixed Point-to-Point
Microwave radio station on 22464.75 MHz, located at 4630 Border
Village Road, San Diego, California, was granted on May 18, 2005
under call sign WQCT284.
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.6 The
term ``repeated'' means the commission or omission of such act
more than once or for more than one day.7
8. 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 Uniradio was
operating a microwave radio station on microwave channels 21225.0
MHz and 22464.75 MHz. A review of Commission records indicated
that Uniradio had no authorization to operate on 21225.0 MHz. The
review also indicated that Uniradio had a pending application,
but no authorization, to operate on 22464.75 MHz prior to May 18,
2005. On April 19, 2005, Uniradio acknowledged operating a
microwave station on the frequencies of 21225.0 MHz and 22464.75
MHz since May 2004. Uniradio also acknowledged that at that time
it had no license, only pending applications, to operate such a
station.8
9. Uniradio was aware licensing for its station was
required, as evidenced by its license application, and admits
that its microwave radio station has been operating on either
21225.0 MHz or 22464.75 MHz since it was first installed in May
2004. Therefore, Uniradio'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 Uniradio
apparently willfully and repeatedly violated Section 301 of the
Act by operating a microwave radio station without authorization.
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 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 Uniradio is apparently liable for a forfeiture in the amount
of $10,000.
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,
Uniradio Corp. 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
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,
Uniradio Corp. 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. 20554.12
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 Uniradio
Corp. 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. 0001742599.
5See File No. 0002094917.
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 frequency proposed for use by Uniradio in its
applications is not contained in these frequency bands. Also,
Uniradio's proposed station is located approximately 0.64 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.