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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-05-SD-011
More Enterprises Communications )
Network, Inc. NAL/Acct. No.: 200532940008
)
San Diego, California FRN: 0010901734
)
)
FORFEITURE ORDER
Adopted: August 23, 2006 Released: August 25, 2006
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to More Enterprises
Communications Network, Inc. ("More Enterprises") 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 More Enterprises after determining
that More Enterprises apparently willfully and repeatedly operated an
unlicensed microwave radio station on microwave channels 21675.0 MHz
and 22471.75 MHz in San Diego, California. In this Order, we consider
More Enterprises' argument that Commission staff had assured
"similarly situated" microwave operators, and More Enterprises, by
association, that the Commission would not take enforcement action
against them.
II. BACKGROUND
2. On December 14, 2004, an agent from the Commission's San Diego Office
was investigating allegations that companies in the San Ysidro 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 by More Enterprises, at an
unattended transmitter site at 4630 Border Village Road, San Diego,
California. The frequency measurement showed that this microwave radio
station was operating on microwave channel 21675.0 MHz.
3. A review of the Commission's database revealed that More Enterprises
had no authorization to operate a point-to-point microwave radio
station. However, a pending application, filed by More Enterprises on
September 2, 2004, for frequency 22471.75 MHz at the 4630 Border
Village Road location was found.
4. On January 25, 2005, the San Diego agent returned to the More
Enterprises site and again measured the microwave radio station
operating on microwave channel 21675.0 MHz. At this time the agent
conducted an inspection of the radio station with the building
management. The information provided by the building management and
others confirmed that this transmitter was operated by More
Enterprises.
5. On March 11, 2005, the San Diego Office sent a Letter of Inquiry
("LOI") to More Enterprises concerning its operation on an
unauthorized frequency of 21675.0 MHz, in violation of Section 301 of
the Act. On March 23, 2005, an agent of the Commission's San Diego
Office returned to the More Enterprises site at 4630 Border Village
Road and found that the station was operating on microwave channel
22471.75 MHz. The San Diego Office received a reply to the LOI on
April 8, 2005. In its reply, More Enterprises acknowledged that it
began operating this microwave radio station in 2004 on 21675.0 MHz
and that it had a license application pending with the Commission.
More Enterprises also stated that the equipment as installed had the
receiver and transmitter frequencies inadvertently switched as the
station should operate on 22471.75 MHz.
6. A further review of the Commission's database revealed that on August
17, 2005, the pending More Enterprises application for a Private
Operational Fixed Point-to-Point Microwave radio station on 22471.75
MHz, located at 4630 Border Village Road, San Diego, California, was
granted under call sign WQDG363.
7. On September 28, 2005, the San Diego Office issued a NAL in the amount
of $10,000 to More Enterprises. In the NAL, the San Diego Office found
that More Enterprises apparently willfully and repeatedly violated
Section 301 of the Act by operating an unlicensed microwave radio
station on microwave channels 21675.0 MHz and 22471.75 MHz in San
Diego, California. More Enterprises filed a response to the NAL on
October 28, 2005 ("Response"). In this Response, More Enterprises
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
to cross border microwave operators, such as More Enterprises, but
that no enforcement action would be taken against these operators
either. More Enterprises argues that its operations in 2004 and 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. More Enterprises attaches affidavits from its counsel
and consulting engineer detailing what they were told by International
Bureau staff in 2001.
III. DISCUSSION
8. 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.
9. 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 December 14, 2004,
January 25, 2005, and March 23, 2005, measurements made by San Diego
agents revealed that More Enterprises was operating a microwave radio
station on microwave channels 21675.0 MHz and 22471.75 MHz. A review
of Commission records indicated that More Enterprises had no
authorization to operate on 21675.0 MHz. The review also indicated
that More Enterprises had a pending application, but no authorization,
to operate on 22471.75 MHz until the license was granted on August 17,
2005. On April 8, 2005, More Enterprises acknowledged operating a
microwave station on the frequencies of 21675.0 MHz and 22471.75 MHz
since 2004. More Enterprises also acknowledged that it had no
authorization, only a pending application, to operate such a station.
10. In its Response, More Enterprises does not claim that it held a valid
authorization to operate its microwave station during the 2004 and
2005 time period detailed in the NAL. Indeed, More Enterprises does
not deny operating repeatedly without a license. More Enterprises also
does not discuss its September 2, 2004 application. Instead, More
Enterprises 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.
11. 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 More Enterprises'
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 More
Enterprises' reliance on this advice in 2004 and 2005 was misplaced.
More Enterprises argues that in 2001, and "[u]ntil 2005, the FCC's
microwave licensing branch had steadfastly refused to grant
applications seeking cross-border 23 GHz links because the licensing
authority in Mexico was not then issuing authorizations for parallel
links from Mexico to the U.S." A review of the Commission's database
shows that More Enterprises is mistaken. By January 2004, cross-border
coordination and licensing by both the FCC and the Mexican Ministry of
Communications and Transport ("SCT") was routinely occurring. Indeed,
when More Enterprises first filed an application for authority to
operate on September 2, 2004, cross-border microwave licensing by the
FCC was occurring. Therefore, More Enterprises clearly understood that
licensing was required for its cross-border operations in 2004 and
2005, the period during which the San Diego Office agents observed and
questioned More Enterprises' unauthorized operations. Consequently, we
find no merit to More Enterprises' argument.
12. 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 More
Enterprises 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.
IV. ORDERING CLAUSES
13. 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, More Enterprises
Communications Network, Inc. IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $10,000 for willfully and repeatedly violating Section
301 of the Act.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to More
Enterprises Communications Network, Inc., at its address of record,
and its counsel of record, Frederick J. Day, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. S 101.147(s).
See File No. 0001861022.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940008
(Enf. Bur., Western Region, San Diego Office, released September 28,
2005).
47 C.F.R. S 101.147(s).
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.
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 More
Enterprises in its application is not contained in these frequency bands.
Also, More Enterprises' proposed station is located approximately 0.64 km
from the Mexican border.
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).
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 06-1668
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Federal Communications Commission DA 06-1668