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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Number [Author ID1: at Wed Jun
In the Matter of ) 4 13:35:00 2008 ]EB-08-PA-037
Bear Creek Mountain Resort ) NAL/Acct. No. 200832400006
Macungie, Pennsylvania ) FRN 0017-47-0907
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 5, 2008
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Bear Creek Mountain Resort ("Bear Creek") in Macungie,
Pennsylvania, apparently willfully and repeatedly violated Section 301
of the Communications Act of 1934, as amended ("Act"), by operating
radio transmitting equipment on the frequency 462.500 MHz without a
license. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Bear Creek is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 18, 2008, the Philadelphia Office received a complaint
from a member of the Personal Radio Association that Bear Creek was
operating radio communications equipment on several frequencies
without a license. On February 19, 2008, an agent from the FCC's
Philadelphia Office conducted a search in the Universal Licensing
System (ULS) database and found no evidence that Bear Creek was
authorized to operate radio transmitting equipment on any frequencies
in Macungie, Pennsylvania.
3. On February 21, 2008, an agent from the FCC's Philadelphia Office,
using a mobile digital direction finding vehicle, monitored several
frequencies near Bear Creek. The agent observed and recorded several
transmissions on 461.3500 MHz, 462.5000 MHz, 464.4250 MHz, and
467.7625 MHz. On 462.500 MHz, the agent heard an individual request
assistance bringing a girl with a broken wrist down the mountain. The
individual stated that the girl is located at the top of the
"Broadway" trail near the exit of the "F" chairlift.
4. Later that day, an agent interviewed Andy Schott, an employee for Bear
Creek. Schott listened to the agent's audio recordings and confirmed
that the conversation transmitted on the frequency 462.500 MHz was
between employees of Bear Creek. During a phone interview on February
25, 2008, Schott acknowledged that Bear Creek has been operating a
private land mobile system since 2001 and that it operated on the
frequency 462.500 MHz.
III. DISCUSSION
5. 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. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
6. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Rules and with a license issued by the Commission. On February 21,
2008, an agent determined that Bear Creek operated radio transmission
equipment on the frequency 462.500 MHz without the required Commission
authorization. Because Bear Creek acknowledged that it had been
operating on the frequency 462.500 MHz without a license, we find that
the violation was willful. According to a Bear Creek representative,
the unlicensed operation had been occurring since 2001. We therefore
find that the violation was repeated.
7. Based on the evidence before us, we find that Bear Creek apparently
willfully and repeatedly violated Sections 301 of the Act by operating
radio transmitting equipment on the frequency 462.500 MHz without a
license.
8. 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 operating radio transmitting equipment
without an instrument of authorization is $10,000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) 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. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Bear Creek is apparently liable for a
($10,000) forfeiture.
IV. ORDERING CLAUSES
9. 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, Bear Creek Mountain Resort
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. 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, Bear Creek Mountain
Resort SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. Payment of the forfeiture must be made by credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced above. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank Federal Reserve Bank
of New York, and account number 27000001. Requests for full payment
under an installment plan should be sent to: Chief Financial Officer
-- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Bear Creek shall also send electronic
notification on the date said payment is made to NER-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 and must include the NAL/Acct. No.
referenced in the caption. An electronic copy shall be sent to
NER-Response@fcc.gov.
13. 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.
14. 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 Bear Creek Mountain Resort at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
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.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 301.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission