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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                        )                              
                                                                       
                                        )                              
     In the Matter of                                   EB-09-LA-0002  
                                        )                              
     Wal-Mart Supercenter Store #3351       NAL/Acct. No.201032900001  
                                        )                              
     Las Vegas, Nevada                                FRN: 0017830407  
                                        )                              
                                                                       
                                        )                              


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                  Released: December 22, 2009

   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 Wal-Mart Supercenter Store #3351("Wal-Mart"), in Las Vegas,
       Nevada, apparently  willfully and repeatedly violated Section 301 of
       the Communications Act of 1934, as amended ("Act") by operating radio
       transmitters without a license. We conclude, pursuant to Section
       503(b) of the Communications Act of 1934, as amended ("Act"), that
       Wal-Mart is apparently liable for a forfeiture in the amount of five 
       thousand dollars ($5,000).

   II. BACKGROUND

    2. On May 6, 2009, in response to a complaint about Wal-Mart operating
       radio transmitters on 151.955 MHz in Las Vegas, Nevada, without a
       license, an agent from the Enforcement Bureau's Los Angeles Office
       employed a Mobile Direction Finding ("MDF") vehicle to monitor 151.955
       MHz in Las Vegas, Nevada. Voice transmissions were detected and
       determined to be emanating on 151.955 MHz from the Wal-Mart
       Supercenter Store #3351, located at 6464 N. Decatur Boulevard, Las
       Vegas, Nevada ("Decatur Boulevard Location").

    3. On May 7, 2009, the Los Angeles agent again located and monitored
       voice transmissions on 151.955 from  the Wal-Mart store at the Decatur
       Boulevard Location.  The agent then conducted an inspection of  the
       base station and radios in use at the Wal-Mart store. During the
       inspection, the store manager invited the agent to assist in reviewing
       the in-store license board but no radio license could be found
       authorizing operations on 151.955 MHz. The store manager was unable to
       provide the agent with a copy of an FCC license for Wal-Mart's radio
       operation on 151.955 MHz. The manager was unaware that Wal-Mart was
       required to have a license to operate on this frequency. The store
       manager was unable to provide the agent with a copy of an FCC license
       for Wal-Mart's radio operation on 151.955 MHz.

    4. On October 16, 2009, the Los Angeles Office issued a Letter of Inquiry
       ("LOI") to Wal-Mart. The LOI requested, in part, a copy of Wal-Mart's
       authorization to operate transmitters on 151.955 MHz at the Decatur
       Boulevard Location. On November, 1, 2009, the Los Angeles Office
       received Wal-Mart's response to the LOI. The response stated, in
       relevant part, that Wal-Mart did not have a license to operate on
       151.955 MHz at the Decatur Boulevard Location, that Wal-Mart had been
       operating radios at this location on 151.955 MHz since October 2006,
       and that Wal-Mart was no longer using the frequency and moved to the
       multi-use radio service ("MURS") subsequent to the agent's inspection.

   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) 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... except under and in accordance with this Act and
       with a license in that behalf granted under the provisions of this
       Act." On May 6 and May 7, 2009, the Los Angeles agent located
       transmissions on 151.955 MHz to the Wal-Mart store at the Decatur
       Boulevard Location. At the time of the inspection, the store manager
       was unable to provide a Los Angeles agent with a license authorizing
       Wal-Mart's operation on 151.955 MHz. Subsequently, in its response to
       the Los Angeles Office's LOI, Wal-Mart acknowledged it did not have a
       license to operate on 151.955 MHz and that it had been operating on
       that frequency since October 2006. While Wal-Mart has a license to
       operate at another location in the Las Vegas area on other frequencies
       pursuant to Part 90 of the Rules, there is no evidence that its
       license authorized Wal-Mart to operate on 151.955 MHz from the Decatur
       Boulevard Location. The violation occurred on more than one day,
       therefore, it was repeated. As the holder of multiple FCC licenses,
       Wal-Mart was aware such operations required a license. Therefore, the
       violation was willful. Based on the evidence before us, we find that
       Wal-Mart  apparently willfully and repeatedly violated Section 301 of
       the Act.

    7. 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 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 Wal-Mart'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 Wal-Mart is apparently liable for a $5,000
       forfeiture.

   IV. ORDERING CLAUSES

    8. 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, Wal-Mart Supercenter Store
       #3351, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
       in the amount of five  thousand dollars ($5,000) for violations of
       Section 301 of the Act.

    9. 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, Wal-Mart Supercenter
       Store #3351, Inc. SHALL PAY the full amount of the proposed forfeiture
       or SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

   10. 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. Wal-Mart Supercenter Store
       #3351 must send electronic notification on the date said payment is
       made to WR-Response@fcc.gov.

   11. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Western Region, Los Angeles Office,
       18000 Studebaker Road, Suite 660, Cerritos, CA 90703 and must include
       the NAL/Acct. No. referenced in the caption. An electronic copy shall
       be sent to WR-Response@fcc.gov.

   12. 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.

   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 Wal-Mart Supercenter Store #3351, at
       its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Nader Haghighat

   District Director

   Los Angeles District Office

   Western Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   47 U.S.C. S: 503(b).

   A search of the Commission's databases revealed that at the time of the
   investigation, a separate Wal-Mart store, Wal-Mart Supercenter Store
   #3473, located at 4505 W. Charleston Boulevard, in Las Vegas, Nevada, was
   licensed to operate on frequencies 151.925 MHz, 159.720 MHz, 159.750 MHz,
   159.810 MHz and 173.325 MHz, pursuant to call sign WQJA394.

   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.

   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: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

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   Federal Communications Commission