Click here for Adobe Acrobat version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
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
Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
WWC License LLC ) File No. EB-00-TS-283
Licensee of Microwave Stations WPJE660 )
WPJD256 and WPJA761 ) NAL/Acct. No. 200132100014
Kansas )
FORFEITURE ORDER
Adopted: November 5, 2001 Released: November 7,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) to WWC License LLC (``WWC'') for willful and repeated
violations of Section 301 of the Communications Act of 1934,
as amended (``Act'')1 and Section 101.31 of the Commission's
Rules (``Rules'').2 The noted violations involve WWC's
operation of microwave radio stations WPJE660, WPJD256, and
WPJA761 without Commission authorization.
2. On June 7, 2001, the Chief, Technical and Public Safety
Division, Enforcement Bureau issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of five
thousand dollars ($5,000).3 WWC filed a response to the NAL
on July 6, 2001.
II. BACKGROUND
3. On March 9, 2000, WWC submitted applications to operate
fixed microwave radio stations WPJE660, WPJD256, and WPJA761.
Thereafter, WWC began operating the stations pursuant to
Section 101.31(b)(1) of the Rules.4 On June 29, 2000, the
Commission returned the applications because the bandwidth WWC
requested exceeded the maximum allowed for the operating
frequency, and requested the submission of amendments and
waiver requests to operate with the bandwidth WWC sought. WWC
submitted an application for Special Temporary Authority
(``STA'') on August 10, 2000. The Wireless Telecommunications
Bureau granted WWC's STA request on August 29, 2000, and
granted the amended applications and associated waiver
requests on October 10, 2000. WWC continued to operate the
subject microwave stations from June 29, 2000 to August 29,
2000.
4. On June 7, 2001, the Chief, Technical and Public Safety
Division, Enforcement Bureau issued the subject NAL to WWC for
operating the microwave stations during the period June 29,
2000, to August 29, 2000, without a valid license in willful
and repeated violation of Section 301 of the Act and Section
101.31 of the Rules.
5. In its response, WWC asserts that the Commission should
rescind the proposed forfeiture. WWC acknowledges that during
the period June 29, 2000, to August 29, 2000, it continued to
operate its facilities, but argues that its operations were
lawful because they were under color of conditional operating
authority.5 WWC states that when it first submitted its
applications, it believed that it had fulfilled all of the
Commission's requirements to operate under conditional
authority. WWC argues that under the Commission's rules,
conditional authority ceases only if an application is
returned as unacceptable for filing,6 and there is no separate
provision for the cessation of conditional authority if the
application is returned for amendment. WWC claims that
although the return notice stated that the applications were
being returned, it did not ``clearly articulate'' that WWC
would no longer be eligible for conditional authority. WWC
argues that under the Administrative Procedure Act, the
Commission must provide adequate written notice before
conditional authority can be revoked.7 WWC states that it
believed that it retained conditional authority even after
return of its applications.
6. WWC asserts that its alleged violation was minor
because the Commission found its offense was not comparable to
intentional unlicensed operation. In support of this
assertion WWC points out that compared to other forfeiture
notices the operation in question was of more limited
duration, under less clear notice that the operation was
unauthorized, and in violation of a relatively minor rule
requiring only a waiver request. 8 WWC claims that there was
no harm to the public or other Commission licensees during the
period that it operated the stations. Indeed, WWC asserts,
the public would have been adversely affected by termination
of the conditional authority as the subject stations were
being operated to support valuable services. WWC opines that
the public interest was best served by WWC continuing to
provide its critical services to the public. Consequently,
WWC argues that even if the Commission had properly put WWC on
notice that its conditional authority had ceased, the issuance
of a forfeiture in this case suggests that carriers must
choose between seriously prejudicing the public by shutting
down facilities that are not causing any harm, or risk being
subjected to a forfeiture.
III. DISCUSSION
7. As the NAL states, the forfeiture amount in this case
was assessed in accordance with Section 503(b) of the Act,9
Section 1.80 of the Rules,10 and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999). In examining
WWC's response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice
may require.11
8. Under Section 301 of the Act, all radio transmissions
within the United States must be licensed by the Commission.
Section 101.31(b)(1) of the Rules sets forth eight specific
criteria that an applicant for a new point-to-point microwave
radio station must meet to qualify for conditional
authorization. In situations where these criteria are
satisfied, the applicant may operate the station during the
pendency of the application. One of these eight criteria is
set forth in Section 101.31(b)(1)(iii) of the Rules12 and
provides that an applicant may operate pursuant to conditional
authority if grant of the application does not require a
waiver of the Commission's rules. As indicated earlier, WWC
needed a waiver to operate at the requested bandwidth.13
Thus, WWC failed to meet one of the eight criteria provided in
Section 101.31(b), and consequently, WWC's microwave radio
stations WPJE660, WPJD256, and WPJA761 did not qualify for
conditional authorization when it filed its applications with
the Commission. See Califormula, Inc., 16 FCC Rcd 3057
(Enforcement Bureau, 2001), recon. granted in part 16 FCC Rcd
15087 (Enforcement Bureau, 2001). Since under the
Commission's rules, WWC never had conditional authority to
operate, its arguments regarding the status of its conditional
authority once the Commission's staff returned its
applications are irrelevant.
9. WWC is correct, as the NAL notes, that the unauthorized
operation was not comparable to intentional unlicensed
operation. We recognized this fact in setting the forfeiture
amount proposed in the NAL. The base forfeiture amount for
operation without an instrument of authorization is $10,000.14
Here, the NAL issued a forfeiture amount of only $5,000. The
unauthorized operation in this case was not as egregious as
that of a ``pirate'' operator. For this reason, we have not
treated WWC's unauthorized operation the same as a ``pirate''
operation, and the amount of the proposed forfeiture reflected
this fact. However, in view of WWC's short period of
unlicensed operation, we will reduce the forfeiture amount to
$4,000. In this regard, we note that the forfeiture amount is
lower than all of the cases cited by WWC.
10. We find unpersuasive WWC's arguments that the stations
were being operated to support valuable services and no harm
resulted. Notwithstanding the services WWC may have provided,
this does not change our finding that WWC violated our rules
by operating the subject stations without Commission
authorization.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act,15 and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,16 WWC License LLC IS LIABLE FOR A MONETARY
FORFEITURE in the amount of four thousand dollars ($4,000) for
operation of microwave radio stations WPJE660, WPJD256, and
WPJA761 without a valid license in willful and repeated
violation of Section 301 of Act and Section 101.31 of the
Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules17 within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.18 Payment shall be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. referenced above.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.19
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to WWC
License LLC 3650 131st Ave., S.E. Suite 400, Bellevue,
Washington 98006 and to its counsel, Michael Deuel Sullivan,
Esq., Wilkinson Barker Knauer, LLP, 2300 N Street, NW, Suite
700, Washington, DC 20037-1128.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 101.31.
3 WWC License LLC, 16 FCC Rcd 11914 (Enforcement Bureau,
2001).
4 47 C.F.R. § 101.31(b)(1).
5 47 C.F.R. § 101.31(b).
6 47 C.F.R. § 101.31(b)(2).
7 5 U.S.C. § 558(c). In support of its argument, WWC cites
Blackwell College of Business v. Attorney General, 454 F.2d 928
(D.C. Cir. 1971) (``Blackwell'') and Contel Cellular of
Nashville, Inc., 14 FCC Rcd 6302 (1999) (``Contel'').
8 Verizon Florida, Inc., 16 FCC Rcd 2590 (Enforcement
Bureau, 2001) (``Verizon Florida'') (issuing a Notice of Apparent
Liability for Forfeiture for $5,000 for operating a paging
station without authorization for one year and four months);
Verizon Southwest, Inc., 16 FCC Rcd 2247 (Enforcement Bureau,
2001) (``Verizon Southwest'') (issuing a Notice of Apparent
Liability for Forfeiture for $5,000 for operating an air-ground
system without authorization for six months); Califormula, Inc.,
16 FCC Rcd 3057 (Enforcement Bureau, 2001) (``Califormula'')
(imposing $10,000 forfeiture for operating a microwave radio
station without conditional authority), recon. granted in part 16
FCC Rcd 15087 (reducing forfeiture to $6,000); Central Illinois
Public Service Company, 15 FCC Rcd 1750 (1999) (issuing a Notice
of Apparent Liability for Forfeiture for $30,000 for
substantially transferring control of 88 microwave stations
without authorization); Florida Power and Light Co., 14 FCC Rcd
7199 (Wireless Telecommunications Bureau, 1999) (issuing a Notice
of Apparent Liability for Forfeiture for $14,000 for operating
seven microwave stations after expiration of the licenses for
five months).
9 47 U.S.C. § 503(b).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 503(b)(2)(D).
12 47 C.F.R. § 101.31(b)(1)(iii).
13 47 C.F.R. §§ 101.109 and 101.147.
14 See note to 47 C.F.R. § 1.80(b)(4).
15 47 U.S.C. § 503(b).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 C.F.R. § 1.80.
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.