Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************




                                   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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       3

   Federal Communications Commission