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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
American General Finance, Inc. ) File No. EB-05-SE-211
Licensee of Earth Stations E950320, ) NAL/Acct. No. 200632100015
E950321, E950322, E950323 ) FRN # 0013399076
Evansville, Indiana )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 27, 2006 Released: June 29, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find American
General Finance, Inc. ("AGF"), licensee of Ku-band satellite earth
stations E950320, E950321, E950322, and E95323, in Evansville,
Indiana, apparently liable for a forfeiture in the amount of $20,000
for unauthorized modifications made to its Very Small Aperture
Terminal ("VSAT") network, in apparent willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended, ("Act")
and Sections 25.102(a) and 25.117(a) of the Commission's Rules
("Rules").
II. background
2. AGF is a large consumer finance company that has a licensed fixed
satellite VSAT network, which consists of a hub earth station with
call sign E950320, and three associated remote earth stations with
call signs E950321, E950322, E950323. On June 2, 2005, AGF filed with
the Commission's International Bureau a request for Special Temporary
Authority ("STA") for each of the four stations. AGF had previously
modified each station's operation such that each station's operation
was no longer consistent with its authorization. Through each STA
request, AGF sought temporary authority to continue operation of each
station with the unauthorized modified facilities. AGF also included
information indicating that it had failed to seek authority for a
transfer of control from its parent company, American International
Group, in 2001. Also on June 2, 2005, AGF filed a renewal of license
application for each of the four stations in advance of each station's
license expiration date of July 14, 2005.
3. In each STA request, AGF disclosed that "[d]ue to an inadvertent
misunderstanding on the part of AGF's technical staff, AGF failed to
file a request for modification at the time it made [certain] changes
to its facilities." AGF stated that it regretted its oversight in
changing its network operations without first requesting authority
from the Commission to do so, and that "it has taken measures to
ensure future compliance with the Commission's rules." On June 8,
2005, in another correspondence with the International Bureau, AGF
admitted that it became aware of these oversights "[d]uring the course
of preparing renewal applications for these licenses ...."
4. In the June 8, 2005 correspondence, AGF described the three
modifications it made without Commission approval as follows. In
January, 2003, it added three emission designators to each of its four
stations ("modification 1"); in January, 2003, it also added remote
antennas in Puerto Rico and the U.S. Virgin Islands at stations
E950322 and E950323 ("modification 2"); and, in October, 2004, it
began deploying 98 cm antennas at station E950321 ("modification 3").
5. The International Bureau granted the STAs for all four stations for 60
days on July 14, 2005, and granted all four license renewal
applications on July 15, 2005. On the same date, July 15, 2005, the
International Bureau referred the case to the Enforcement Bureau for
investigation and possible enforcement action. On July 29, 2005, AGF
filed four modification applications which the International Bureau
granted on September 30, 2005. Both the STAs and the modification
applications were granted "without prejudice to any future enforcement
action against the company in connection with unauthorized operation
of its radio facilities."
III. Discussion
1. 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. Additionally,
under Section 25.117(a) of the Rules, Commission approval is required
before a modification may be implemented which affects the parameters
or terms and conditions of a Part 25 radio station authorization. In
its STA applications and correspondence, AGF acknowledges that its
personnel made the unauthorized modifications listed above. The effect
of modification 1, adding unauthorized emission designators to each of
the four stations, was to increase impermissibly the bandwidth of its
emissions. With modification 2, adding remote terminals in Puerto Rico
and the U.S. Virgin Islands, AGF expanded its area of operation
without authorization. Modification 3, deploying unauthorized 98 cm
antennas, violated the Commission's two degree spacing policy and
thereby creates the potential for causing interference. Thus, all
three modifications affected the parameters or terms and conditions of
AGF's authorizations. Therefore, AGF's failure to obtain prior
Commission approval before implementing the modifications violated
Section 25.117(a) of the Rules.
2. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
Rules, and "repeatedly" means more than once. Based upon the record
before us, AGF apparently willfully and repeatedly violated Section
301 of the Act and Sections 25.102(a) and 25.117(a) of the Rules by
the modifications made to its stations without Commission authority.
We therefore find that a forfeiture penalty is warranted.
3. The Commission's Forfeiture Policy Statement and Section 1.80(b) of
the Rules establish a base forfeiture amount of four thousand dollars
($4,000) for unauthorized emissions and construction or operation at
an unauthorized location, and five thousand dollars ($5,000) for use
of unauthorized equipment. We believe that AGF's unauthorized
modifications justify the following proposed forfeitures. For AGF's
addition of unauthorized emission designators, which increased the
bandwidth of its emissions for all four stations (modification 1), we
propose a $4,000 forfeiture for each violation, or $16,000. For AGF's
expansion of its area of operation at two of its stations by adding
remote antennas in Puerto Rico and the U.S. Virgin Islands without
authorization, we propose a $4,000 forfeiture for each station, or
$8,000 (modification 2). Lastly, for AGF's deployment of unauthorized
98 cm antennas (modification 3), we propose a $5,000 forfeiture
because the unauthorized antennas violated the Commission's two degree
spacing policy and thereby created the potential for interference. The
proposed forfeiture amount for these four violations totals $29,000.
4. In proposing a forfeiture, Section 503(b)(2)(D) of the Act directs us
to consider factors, such as "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 such other matters as justice may require." Considering the
statutory factors as explained above, we find it appropriate to reduce
the proposed aggregate forfeiture of $29,000, based on the fact that
AGF has a history of compliance and that it voluntarily disclosed the
violations to Commission staff. Accordingly, on the basis of AGF's
history of compliance and voluntary disclosure, we are downwardly
adjusting the proposed forfeiture from $29,000 to $20,000.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
American General Finance, Inc. IS hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty thousand dollars
($20,000) for its apparent willful and repeated violations of Section
301 of the Act, and Sections 25.102(a) and 25.117(a) of the Rules.
6. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, American General Finance, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
7. 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. A request for
full payment under an installment plan should be sent to: Associate
Managing Director - Financial Operations, 445 12^th Street, S.W., Room
1A625, Washington, D.C. 20554.
8. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
9. 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; 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.
10. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to counsel for American General Finance,
Inc., Elizabeth Park, Esq., Latham & Watkins LLP, 555 11^th St., N.W.,
Suite 1000, Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
Enforcement Bureau
11.7-12.2 and 14.0-14.5 GHz bands.
47 U.S.C. S 301.
47 C.F.R. SS 25.102(a) and 25.117(a).
AGF uses the VSAT network to manage, distribute and collect information
among its headquarters and its branch offices, and to facilitate
administration of lending, financing and other credit transactions with
its customers.
Filings from Elizabeth Park, Counsel for AGF, to the International Bureau,
Federal Communications Commission (June 2, 2005).
The unauthorized transfer of control admission will be referred to the
Investigations and Hearings Division of the Enforcement Bureau for
appropriate action.
See Attachment A to each STA that AGF filed, supra, n. 5.
Id.
E-Mail from Elizabeth Park, counsel for AGF, to the Satellite Division,
International Bureau, Federal Communications Commission (June 8, 2005).
Id.
See File No. SES-STA-20050602-00677, SES-STA-20050602-00678,
SES-STA-20050602-00679, and SES-STA-20050602-00680. The International
Bureau renewed all the STAs on September 13, 2005, for 30 days under File
Nos. SES-STA-20050909-01244, SES-STA-20050909-01245,
SES-STA-20050909-01246, and SES-STA-20050909-01247.
See File Nos. SES-RWL-20050625-00755, SES-RWL-20050625-00756,
SES-RWL-20050625-00757, and SES-RWL-20050625-00758.
See File Nos. SES-MOD-20050802-01027, SES-MOD-20050802-01028,
SES-MOD-20050802-01029 and, SES-MOD-20050802-01030.
Supra, notes 11 and 13.
None of the exceptions to the requirement of prior Commission approval for
modifications, as described in Section 25.118 of the Rules, 47 C.F.R. S
25.118, apply here.
See 47 C.F.R. S 25.134. This section explains the licensing provisions of
VSAT networks.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
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,' ... 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) ("Southern California")
(discussing legislative history regarding applicability of Section
312(f)(1) definition of "willful" to Section 503(b)).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
forfeitures assessed pursuant to Section 503(b) of the Act, provides that
"[t]he term `repeated,' ... means the commission or omission of such act
more than once or, if such commission or omission is continuous, for more
than one day." See Southern California, supra, 6 FCC Rcd at 4388.
The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17114 (1997), recon. denied (1999)("Forfeiture Policy Statement").
47 C.F.R. S 1.80(b)(4), Note to paragraph (b)(4); Section I. Base Amounts
for Section 503 Forfeitures.
These violations occurred at earth stations E950322 and E950323.
This violation occurred at earth station E950321.
47 U.S.C. S 503(b)(2)(D). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, supra.
See, e.g., KGB, Inc., 13 FCC Rcd 16396, 16398 (1998)(reducing the proposed
forfeiture from $11,500 to $9,200 for airing indecent material due to the
broadcast licensee's history of overall compliance); South Central
Communications Corp., 18 FCC Rcd 700, 702 (Enf. Bur. 2003)(reducing the
proposed forfeiture from $10,000 to $8,000 for antenna structure lighting
violations due to the licensee's history of overall compliance).
See Petracom of Texarkana, LLC, 19 FCC Rcd 8096, 8097-8098 (Enf. Bur.
2004); see also Criswell College, 21 FCC Rcd 5106, 5109 (Enf. Bur.,
Spectrum Enf. Div., 2006); Gilmore Broadcasting Corporation, DA 06-1189 at
P 10 (Enf. Bur., Spectrum Enf. Div., June 5, 2006).
47 U.S.C. S 503(b).
47 C.F.R. S 0.111, 0.311 and 1.80.
47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1324
2
Federal Communications Commission DA 06-1324