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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Abacus Television
) File Number EB-07-PA-386
Licensee of UHF Translator Station
WIIC-LP ) NAL/Acct. No. 200932400001
Pittsburgh, Pennsylvania ) FRN: 0010-72-4557
Facility ID # 68411 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 15, 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 Abacus Television, licensee of UHF translator station WIIC-LP in
Pittsburgh, Pennsylvania, apparently willfully and repeatedly violated
Section 1.903(a) of the Commission's Rules ("Rules") by failing to
operate the station consistent with the terms of the station
authorization. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Abacus Television
is apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On December 3, 2007, the Commission's Philadelphia Office received
information that Abacus Television was operating station WIIC-LP on
Television Channel 32 without authorization. The unauthorized
operation allegedly resulted in harmful interference to the operation
of wireless microphones at a National Football League game. A review
of Commission records revealed that the license BLTTL-19981230JB
authorized Abacus Television to operate station WIIC-LP on Channel 29
(560 - 566 MHz) from antenna structure 1022324, which is located at
2850 Berthoud Street, Pittsburgh, Pennsylvania. There was no evidence
that Abacus Television was authorized to operate station WIIC-LP on
Television Channel 32 (578 - 584 MHz.)
3. On December 6, 2007, an agent from the Philadelphia Office conducted
an inspection of station WIIC-LP at its licensed transmitter site and
found that the station was operating on Television Channel 32 (578 -
584 MHz). While at the WIIC-LP main studio, the agent discussed the
operation of the station on the telephone with the owner of Abacus
Television. The owner reported that Abacus Television changed the
frequency of station WIIC-LP from Television Channel 29 to Television
Channel 32 because a newly licensed digital television station in the
Johnstown, Pennsylvania area began operating on Channel 29 and caused
harmful interference to the reception of station WIIC-LP in the
Pittsburgh, Pennsylvania area. According to an invoice provided by
Abacus Television, Pro Services Inc. retuned the WIIC-LP transmitter
to Television Channel 32 between April 5, 2007 and April 7, 2007.
4. During the telephone conversation on December 6, 2007, the owner for
Abacus Television advised the agent that he had filed a request for
Special Temporary Authority ("STA") with the Commission about one year
ago, but the Commission's Media Bureau was withholding processing of
the request. On December 19, 2007, Abacus Television provided the
Philadelphia Office with evidence that on February 26, 2007 it
attempted to file a request for Special Temporary Authority through
the Commission's CDBS Electronic Filing System to operate station
WIIC-LP on Channel 32. According to the Media Bureau, Abacus
Television's request for Special Temporary Authority was not accepted
for filing because the filing fee was not paid.
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 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. Section 1.903(b) further
provides that the "holding of an authorization does not create any
rights beyond the terms, conditions, and period specified in the
authorization." The authorization for UHF Translator station WIIC-LP
requires that the station operate on Television Channel 29. On
December 6, 2007, agents determined that station WIIC-LP was operating
on Television Channel 32. Subsequent to the inspection, Abacus
Television provided the Philadelphia Office with an invoice showing
that station WIIC-LP has been operating on Channel 32 since April 7,
2007. Because the operation on the unauthorized frequency occurred for
more than one day, we find that the violation was repeated. Because
Abacus Television admitted that it had knowingly operated the station
on the unauthorized frequency, the violation was willful.
7. Based on the evidence before us, we find that Abacus Television
apparently willfully and repeatedly violated Section 1.903(a) of the
Rules by operating UHF translator station WIIC-LP on an unauthorized
television channel and in a manner consistent with the terms of the
station authorization.
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 operation on 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)(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 Abacus Television is apparently
liable for a ($4,000) 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, Abacus Television is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 17.1350(a) of
the Rules.
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, Abacus Television 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, 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 by wire transfer may be made to ABA Number
021030004, receiving bank Federal Reserve Bank of New York, 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. 20554.8 If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Abacus Television will 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.
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 Abacus Television at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 1.903(a). Although many of the rules that apply to low power
TV stations are found in Part 74 (47 C.F.R. S:S: 74.701-74.796), Section
1.901 provides that the purpose of the Part 1 rules "is to establish the
requirements and conditions under which entities may be licensed in the
Wireless Radio Services as described in this part and in parts 13, 20, 22,
24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this chapter." 47 C.F.R. S:
1.901.
47 U.S.C. S: 503(b).
We note that, although Abacus Television filed a request for waiver of the
regulatory filing fees, such request was filed on November 2, 2007, more
than nine months after Abacus Television reports that it filed its STA
request.
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."
Part 1 of the Rules establishes the requirements and conditions under
which entities may be licensed in the Wireless Radio Services as described
in parts 1, 13, 20, 22 24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this
chapter. UHF Television Translator Stations are described in Part 74 of
the Rules.
With regard to Abacus Television's STA request, we note that, even if it
had successfully been filed, a licensee is not permitted to operate under
the conditions requested in an STA until such time that the STA is granted
by the Commission.
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, 73.1350(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission