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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File Number: EB-05-SD-031
Anderson Desk Company NAL/Acct. No.: 200532940002
San Diego, California FRN: 0009980855
Adopted: August 23, 2006 Released: August 25, 2006
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Anderson Desk Company
("Anderson") for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). On September 28, 2005,
the Enforcement Bureau's San Diego Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $10,000 to Anderson
after determining that Anderson apparently willfully and repeatedly
operated an unlicensed microwave radio station on microwave channels
21225.0 MHz and 22461.25 MHz in San Diego, California. In this Order,
we consider Anderson's argument that Commission staff had assured
"similarly situated" microwave operators, and Anderson, by
association, that the Commission would not take enforcement action
2. On February 4, 2005, an agent from the Commission's San Diego Office
was investigating allegations that companies in the Otay Mesa area of
San Diego were using unauthorized microwave radio stations to
communicate with sister companies across the U.S. - Mexico border in
Tijuana, Mexico. The agent monitored and measured the transmissions of
a microwave radio station operated at an office occupied by Anderson
Desk Company, a manufacturer of office furniture, at 7510 Airway Road,
San Diego, California. The frequency measurement of this microwave
radio station was 21224.0 MHz.
3. A review of the Commission's database revealed that Anderson had no
authorization to operate a point-to-point microwave radio station.
However, a pending application, filed by Anderson on September 23,
2004, for frequency 22461.25 MHz at the 7510 Airway Road location was
4. The San Diego agent returned to the Anderson office on February 9,
2005, and again made measurements showing that the microwave radio
station was operating on the microwave channel 21225.0 MHz. An
inspection was attempted, but no one was available to make the station
available for inspection at that time.
5. On February 28, 2005, the San Diego agent returned to the Anderson
office and again measured the microwave radio station operating on
microwave channel 21225.0 MHz. At this time the agent conducted an
inspection of the radio station with an Anderson staff member. The
agent requested a copy of Anderson's station authorization for its
microwave radio station, but only a copy of the September 23, 2004,
pending application could be found at the Anderson office.
6. On March 11, 2005, the San Diego Office sent a Letter of Inquiry
("LOI") to Anderson concerning its operation on an unauthorized
frequency of 21224.0 MHz, in violation of Section 301 of the Act. The
San Diego Office received a reply to the LOI on March 23, 2005. In its
reply, Anderson stated that this radio station was used for internal
business communications between Anderson's U.S and Mexican facilities.
Anderson acknowledged that it began operating this microwave radio
station in 2000 on frequency 22461.25 MHz and had replaced some
defective equipment in December 2004. At that time, frequency 21224.0
MHz was installed. Anderson further stated that the repaired unit was
back in service and that "the operation frequency is 22461.25."
Anderson also acknowledged that its pending application for authority
to operate on 22461.25 MHz had not yet been granted.
7. On May 20, 2005, Anderson's pending application was granted under the
call sign of WQCT534 for frequency 22461.25 MHz. However, the licensed
geographical coordinates for WQCT534 did not match the coordinates of
the actual transmitter location of 7510 Airway Road, San Diego,
California. The difference between the two locations is approximately
8. On September 28, 2005, the San Diego Office issued a NAL in the amount
of $10,000 to Anderson. In the NAL, the San Diego Office found that
Anderson apparently willfully and repeatedly violated Section 301 of
the Act by operating an unlicensed microwave radio station on
microwave channels 21225.0 MHz and 22461.25 MHz in San Diego,
California. The San Diego Office also required Anderson to file a
report concerning Anderson's efforts to bring its microwave radio
station into compliance with the terms of its authorization for
station WQCT534. Specifically, Anderson was required to detail how it
had relocated its transmitter to the coordinates specified in the
station authorization, or how it had amended its authorization to
accurately reflect the location of the transmitter.
9. Anderson filed a response to the NAL on October 28, 2005 ("Response").
In this Response, Anderson argues that "similarly situated" microwave
operators had been assured by staff from the Commission's
International Bureau, in 2001, that the International Bureau would no
longer grant special temporary authority ("STA") to cross border
microwave operators, such as Anderson, but that no enforcement action
would be taken against these operators either. Anderson argues that
its operations in 2005, which are the basis of the San Diego Office's
NAL, were done in reliance on this advice and therefore the proposed
forfeiture should be cancelled. Anderson attaches affidavits from its
counsel and consulting engineer detailing what they were told by
International Bureau staff in 2001. Anderson, however, does not attach
the report required by the San Diego Office concerning the location of
its transmitter. Review of the Commission's records reveals that
Anderson filed an application to modify the WQCT534 license by
amending the coordinates of the transmitter location.
10. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the 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. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. On February 4, 2005,
February 9, 2005, and February 28, 2005, measurements made by a San
Diego agent revealed that Anderson was operating a microwave radio
station on the frequency 21224.0 MHz. A review of Commission records
indicated that Anderson had no authorization to operate on 21224.0
MHz. The review also indicated that Anderson had a pending
application, but no authorization, to operate on 22461.25 MHz. On
March 23, 2005, Anderson acknowledged operating a microwave station on
the frequencies of 22461.25 MHz and 21224.0 MHz since 2000. Anderson
also acknowledged that it had no license, only a pending application,
to operate such a station.
12. In its Response, Anderson does not claim that it held a valid
authorization to operate its microwave station during the 2005 time
period detailed in the NAL. Indeed, Anderson does not deny operating
repeatedly without a license. Anderson also does not discuss its
September 23, 2004 application, or why it was filed. Instead, Anderson
argues that it should not be liable for a forfeiture because it was
relying on oral advice given to its counsel by Commission staff in
2001, concerning other similarly situated microwave operators.
13. The Commission has consistently held that applicants are responsible
for compliance with the Commission's Rules and that they should not
rely on informal oral opinions from Commission staff. However,
assuming arguendo that Commission staff did advise Anderson's counsel
that there would be no further enforcement actions initiated by field
offices regarding unlicensed cross-border 23 GHz systems in 2001, we
agree with the San Diego Office's determination that Anderson's
continued reliance on this advice in 2005 was misplaced. In fact, in
its Response, Anderson acknowledges that in 2005, cross-border
coordination and licensing by both the FCC and the Mexican Ministry of
Communications and Transport ("SCT") was occurring. Indeed, Anderson
filed an application for authority to operate in 2004. Therefore,
Anderson clearly understood that licensing was both required, and
available, for its cross-border operations in 2005, the time period
during which the San Diego Office agent observed and questioned
Anderson's unauthorized operations. Therefore, we find no merit to
14. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Anderson
willfully and repeatedly violated Section 301 of the Act. Considering
the entire record and the factors listed above, we find that neither
reduction nor cancellation of the proposed $10,000 forfeiture is
warranted. Additionally, because Anderson has failed to respond to the
San Diego Office's report requirement, we direct Anderson, to file,
within ten (10) days of the date of this Order, a report with the
District Director of the San Diego Office concerning Anderson's
efforts to bring its microwave radio station into compliance with the
terms of its authorization for station WQCT534. Specifically, Anderson
must detail how it has relocated its transmitter to the coordinates
specified in the station authorization, or how it has amended its
authorization to accurately reflect the location of the transmitter.
If Anderson fails to comply with this directive, we may begin
forfeiture proceedings against Anderson for failing to comply with a
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Anderson Desk Company
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $10,000 for
willfully and repeatedly violating Section 301 of the Act.
16. IT IS FURTHER ORDERED that Anderson Desk Company SHALL FILE, within
ten (10) days of the release of this Notice, a report with the
District Director, San Diego Office, concerning Anderson Desk
Company's efforts to come into compliance with the authorization for
station WQCT534, as detailed above.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules 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. 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. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Anderson
Desk Company, at its address of record, and its counsel of record,
Frederick J. Day, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 U.S.C. S 301.
47 C.F.R. S 101.147(s).
See File No. 0000281783. Pursuant to Sections 101.31(b)(1) and
101.31(b)(1)(v) of the Rules, 47 C.F.R. SS 101.31(b)(1), 101.31(b)(1)(v),
certain applicants for point-to-point microwave stations, not located
within 56.3 kilometers of any international border, operating in certain
frequency bands, are deemed to have conditional authority to operate their
proposed stations during the pendency of their applications. The frequency
proposed for use by Anderson Desk in its application is not contained in
these frequency bands. Also, Anderson Desk's proposed station is located
approximately 1.5 km from the Mexican border.
The actual measurement made by the agent showed that the station was
operating on 21224.0 MHz.
21224.0 MHz is within the maximum allowable tolerance of microwave channel
21225.0 MHz. See 47 C.F.R. S 101.147(s).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940002
(Enf. Bur., Western Region, San Diego Office, released September 28,
47 C.F.R. S 101.147(s).
See File No. 0002448658, filed January 17, 2006. This application is still
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301.
Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom. Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).
See, e.g., BigZoo.com, 20 FCC Rcd 3954 (EB 2005).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1667
Federal Communications Commission DA 06-1667