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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-06-LA-086
Macerich - Santa Monica Place
) NAL/Acct. No. 200632900011
Licensee of Station WQCI991
) FRN: 0011720653
Santa Monica, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 31, 2006
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Macerich - Santa Monica Place ("Macerich"), licensee of land
mobile station WQCI991, apparently willfully and repeatedly violated
Section 1.903(a) of the Commission's Rules ("Rules") by operating on
461.0125 MHz, a frequency not authorized by the license, WQCI991. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Macerich is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On February 13, 2006, the Enforcement Bureau's Los Angeles Office
received an interference complaint concerning Macerich's unauthorized
repeater station operating on 461.0125 MHz in Santa Monica, CA. A
review of the Commission's databases revealed no authorization for any
station to operate on 461.0125 MHz in that area.
3. On March 27, 2006, and April 4, 2006, an agent from the Los Angeles
Office used mobile direction finding techniques to locate
radio-repeater transmissions on 461.0125 MHz to the Santa Monica Place
shopping mall in Santa Monica, California. After locating the repeater
station on April 4, 2006, the Los Angeles agent interviewed the
Security Manager for Macerich who stated that the repeater
transmitting on 461.0125 MHz had been in operation for over a year and
produced a copy of Macerich's license for WQCI991. The license
authorized Macerich to operate on other UHF band frequencies but not
on 461.0125 MHz. The Los Angeles agent informed the Security Manager
that the current license did not authorize the use of the 461.0125 MHz
repeater and the Security Manager stated that he would immediately
stop using that frequency.
III. DISCUSSION
4. 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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. 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 March 27, 2006, and April
4, 2006, a Los Angeles agent determined that Macerich was operating
its land mobile station, WQCI991 on 461.0125 MHz, a frequency not
authorized by its license. The Security Manager for Macerich
acknowledged operation of the station to a Los Angeles agent,
therefore, the violation was willful. Macerich's violation occurred on
more than one day, therefore, it was repeated. Based on the evidence
before us, we find Macerich apparently willfully and repeatedly
violated Section 1.903(a) of the Rules by operating its land mobile
station, WCQI991, on 461.0125 MHz, a frequency not authorized by its
license.
6. 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.
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. When informed of the unauthorized
frequency operation the Macerich Security Manager immediately
terminated the operations. The Commission has stated in the past that
a licensee is expected to correct violations when they are brought to
the licensee's attention and that such correction is not grounds for a
downward adjustment in the forfeiture. Additionally, a licensee is
required to operate on the frequency stated in its authorization.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Macerich is
apparently liable for a forfeiture of $4,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Commission's Rules, Macerich - Santa Monica
Place is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of four thousand dollars ($4,000) for violations of
Section 1.903(a) of the Act.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Macerich - Santa Monica
Place SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
9. 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.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA 90803, and must
include the NAL/Acct. No. referenced in the caption.
11. 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.
12. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
13. 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 Macerich - Santa Monica Place.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S 1.903(a).
47 U.S.C. S 503(b).
A previous license, KNEN676, issued to the Santa Monica Place management
company, SMPL Management, Inc., authorized the use of 461.0125 MHz and
other frequencies. This license was cancelled, however, on December 7,
2003.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission