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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-DV-0334
The Starfish Television Network ) NAL/Acct. No.: 200832800006
Midvale, Utah ) FRN: 0016514879
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 31, 2008
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that The Starfish Television Network ("Starfish"), Midvale, Utah,
apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended, ("Act") and Section 25.102(a)
of the Commission's Rules ("Rules") for operating its fixed satellite
earth station without Commission authorization. We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
("Act"), that Starfish is apparently liable for a forfeiture in the
amount of five thousand dollars ($5,000).
II. BACKGROUND
2. On April 28, 2008, in response to complaint, agents from the
Enforcement Bureau's Denver Office visited the Starfish facility,
located at 6952 South High Tech Drive, in Midvale, Utah, to conduct an
interview with Starfish's Chief Operating Officer ("COO"). The
conversation revealed that Starfish was operating a fixed earth
station in the 6 GHz band, "C-Band," without an authorization from the
Commission. According to the COO, the Starfish fixed earth station
began transmitting a compressed digital television signal on April 18,
2007. In addition, the COO explained that the uplink is transmitting
to the Galaxy 11's transponder 19. In response to questions from the
Denver agents, the COO produced a document showing that Starfish was
operating the fixed earth station with a center frequency of 6299.5
MHz.
3. During the April 28, 2008, interview, Starfish personnel contacted the
company that they had contracted with to file the FCC application for
the earth station authorization with the Commission, to check the
status of their authorization application. Starfish personnel
indicated that the licensing company explained that the licensing
process had not been completed, apparently due to an item regarding
frequency coordination, but that they would look into the licensing
issue and get back to Starfish that same day. The COO stated that
Starfish's engineering consultant had filed the station authorization
paperwork with the licensing company about six to eight months
earlier.
4. Still on April 28, 2008, learning that the uplink was operating in the
C-Band (6 GHz), FCC Agents conducted an analysis of signals coming
from the Starfish uplink equipment and detected an RF signal on a
center frequency of approximately 6299.5 MHz, operating with an
occupied bandwidth of approximately 2.5 MHz. After determining the
operating center frequency of the Starfish uplink, FCC agents met with
the COO, the engineering consultant and a staff engineer. The agents
issued a Notice of Unlicensed Operation (NOUO) to the COO. The COO
signed the NOUO. The COO stated that apparently the licensing company
had issues with one of the companies that they notified with the
frequency coordination and that licensing company did not follow-up
after this and the FCC license application was stalled and not
submitted.
5. On April 29, 2008, the Denver agents return to the Starfish uplink
transmitter location to monitor the RF output of the uplink. The
agents observed an RF signal operating on a center frequency of about
6299.5 MHz and with an occupied bandwidth of approximately 2.5 MHz.
6. On April 30, 2008, the Denver Office received a response from the COO
to the NOUO to Starfish. The COO acknowledged his failure to follow up
with licensing company to ensure that the earth station authorization
was approved and granted by the Commission and enclosed a copy of the
Application for new Earth Station Authorizations, FCC Form 312,
submitted for The Starfish Television Network along with a Payment
Confirmation for The Starfish Television Network dated April 28, 2008.
7. A review of Commission records revealed that the Starfish application
for authorization for its earth station was published in a Commission
Public Notice on May 7, 2008. Further review revealed that Starfish's
application for authorization of its earth station was granted
effective June 9, 2008.
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) 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.
9. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under, and in
accordance with a Commission granted authorization. On April 28, 2008,
investigation by Denver agents revealed that Starfish was operating on
6299.5 MHz, a frequency not authorized for its use by the Commission.
Starfish received a NOUO from the Denver agents warning it against
continuing to operate on channels for which it did not hold a valid
station authorization. Again, on April 29, 2008, the Denver agents
found Starfish operating on 6299.5 MHz without a Commission
authorization. Starfish's Chief Operations Officer admitted to
operating a fixed satellite earth station on 6299.5 MHz from The
Starfish Television Network located at 6952 South High Tech Drive,
Midvale, Utah, for approximately one year without a valid
authorization issued by the FCC. Consequently, Starfish's violation
was willful. The violation occurred for more than one day, therefore,
it was repeated. Based on the evidence before us, we find that
Starfish apparently willfully and repeatedly violated Section 301 of
the Act and Section 25.102(a) of the Rules by operating an earth
station in the fixed satellite service without the benefit of a
license granted by the Commision.
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 of a station 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,
and the statutory factors to the instant case, we conclude that
Starfish's operation is not analogous to a "pirate" station operator,
and, consequently, we downwardly adjust the proposed forfeiture amount
to $5,000. We conclude that Starfish is apparently liable for a $5,000
forfeiture.
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,
0.314 and 1.80 of the Commission's Rules, The Starfish Television
Network, is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of five thousand dollars ($5,000) for
violations of Sections 301 of the Act and 25.102(a) of the Rules.
12. 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, The Starfish Television
Network, 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/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 by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). 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. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver District
Office, 215 South Wadsworth Boulevard, Suite 303, Lakewood, Colorado,
80226, and must include the NAL/Acct. No. referenced in the caption.
An electronic copy shall be sent to WR-Response@fcc.gov.
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. 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 The Starfish Television Network.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
47 U.S.C. S: 503(b).
3700 - 4200 and 5925 - 6425 MHz bands.
Measurements were made using the Agilent E4440A, PSA Series Spectrum
Analyzer, 3 Hz - 26.5 GHz and Antenna Research, DRG-118/A, 1-18 GHz, Horn
Antenna.
Measurements were made using the Agilent E4440A, PSA Series Spectrum
Analyzer, 3 Hz - 26.5 GHz and Antenna Research, DRG-118/A, 1-18 GHz, Horn
Antenna.
In the FCC Public Notice, Satellite Radio Applications Services, Report
No. SES-01030, dated May 7, 2008, The Starfish Television Network is found
on page 3 of 8 with a reference number of SES-LIC-20080428-00496. The
application request a frequency band of 6165 - 6425 MHz and emission of
3M00G7W for the location at 6952 Hightech Drive, Suite C, Midvale, UT,
with coordinates of 40-o 37' 30.90" north latitude, 111-o 53' 53.40" west
longitude.
FCC Public Notice, Satellite Radio Applications Services, Report No.
SES-01041, dated June 11, 2008
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."
47 U.S.C. S: 301, 47 C.F.R. S: 25.102(a).
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).
See Gateway Security Systems, Inc., 18 FCC Rcd 24026 (EB 2003).
47 U.S.C. S:S: 503(b), 301, 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
25.102(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission