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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-04-SD-191
Norman Krieger, Inc )
NAL/Acct. No.: 200532940006
Licensee of WQCC468 )
FRN: 0010627487
San Diego, California )
)
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 four thousand dollars ($4,000) to Norman Krieger, Inc.
("Krieger"), for willful and repeated violation of Section 1.903(a) of
the Commission's Rules ("Rules"). On September 28, 2005, the
Enforcement Bureau's San Diego Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $4,000 to Krieger
after determining that Krieger apparently willfully and repeatedly
operated microwave radio transmitting equipment on an unauthorized
microwave channel of 21375.0 MHz in San Diego, California. In this
Order, we consider Krieger's argument that Krieger did not willfully
or repeatedly operate in violation of the Rules.
II. BACKGROUND
2. On December 1, 2004, 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 Norman
Krieger Inc., a customs broker, at 9635 Heinrich Hertz Drive, San
Diego, California. The frequency measurement showed that this
microwave radio station was operating on microwave channel 21375.0
MHz.
3. The agent returned to the Krieger office on February 25, 2005, and
again measured the frequency of the microwave radio station. The
microwave channel for this measurement was again 21375.0 MHz. A review
of the Commission's database revealed that Krieger has authorization
to operate a Private Fixed Point-to-Point Microwave radio station
under license WQCC468 at the location. However, the authorized
frequency for station WQCC468 is 22461.25 MHz. The agent also
inspected the microwave radio station. The Krieger staff provided the
agent of copy of the station authorization, WQCC468, the following
day. The station authorization indicated that the authorized frequency
for station WQCC468 is 22461.25 MHz.
4. On March 11, 2005, the San Diego Office sent a Letter of Inquiry
("LOI") to Krieger concerning its unauthorized operation on 21377.74
MHz, in violation of Section 1.903(a) of the Commission's Rules. On
March 24, 2005, an agent of the Commission's San Diego Office returned
to the Krieger office and found that station WQCC468 was operating on
its authorized frequency of 22461.25 MHz. The San Diego Office
received a reply to the LOI on April 1, 2005. The reply stated that
this radio station was used for Krieger's internal business
communications between their U.S and Mexican facilities. Krieger
stated that the receiver and transmitter frequencies of the microwave
radio station had been installed backwards and that the improper
operation on 21375.0 MHz began in November of 2003. Krieger also
indicated that the receiver and transmitter frequencies had been
corrected.
5. On September 28, 2005, the San Diego Office issued a NAL in the amount
of $4,000 to Krieger. In the NAL, the San Diego Office found that
Krieger apparently willfully and repeatedly operated microwave radio
transmitting equipment on an unauthorized microwave channel of 21375.0
MHz in San Diego, California. Krieger filed a response to the NAL on
October 31, 2005 ("Response"). In its Response, Krieger argues that it
did not commit a "willful" violation of the Rules, as defined by the
Communications Act of 1934, as amended ("Act"), and, therefore, the
NAL should be cancelled. Krieger also argues that it did not knowingly
cause the transmissions to be repeated. Finally, Krieger asserts that
it corrected the error as soon as it was notified by the San Diego
Office.
III. DISCUSSION
6. 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.
7. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service, and with a valid
authorization granted by the Commission. On December 1, 2004, and
February 25, 2005, San Diego agents determined that Krieger was
operating microwave radio station WQCC468 on the unauthorized
frequency of 21375.0 MHz. Further, Krieger admitted to the San Diego
Office that WQCC468 had been operating on 21375.0 MHz ever since it
was first installed in 2003.
8. In its Response, Krieger acknowledges that it operated its microwave
station WQCC468 on 21375.0 MHz. However, Krieger argues that it did
not willfully violate Section 1.903(a) because Section 312(f)(1) of
the Act defines "willful" as the "conscious and deliberate commission
or omission of [any] act . . . ." Krieger states that it "did not
know" and "did not plan in advance to operate" on 21375.0 MHz. Krieger
further states, and supports with an affidavit from its radio service
company, that the manufacturer of the equipment mislabeled the
equipment to show the frequency of 22461.25 MHz on the equipment, but
programmed the equipment to transmit on the reciprocal frequency, for
this cross-border operation, of 21375.0 MHz. Krieger argues that it
therefore did not consciously or deliberately operate its microwave
station on 21375.0 MHz.
9. The Commission has long held that licensees are responsible for the
acts and omissions of their employees and independent contractors and
has "consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors have
resulted in violations." In this case, Krieger consciously and
deliberately operated WQCC468. Krieger apparently relied on its radio
service company to ensure the station operated within the parameters
of the WQCC468 authorization. Krieger's radio service company, after
contracting with the equipment company for the manufacture of the
WQCC468 transmitting equipment, failed for almost two years to
discover the unauthorized frequency being used by the WQCC468
transmitter. Therefore, Krieger operated WQCC468 on an unauthorized
frequency for almost two years until notified by the San Diego Office.
A licensee is required to operate on the frequency stated in its
authorization, and while Krieger apparently relied on its radio
service company to ensure its compliance with the WQCC468
authorization, we are compelled to treat the error by Krieger's radio
service company as an error by Krieger itself. Therefore, we find that
Krieger's violation was willful. However, even if we were to find that
Krieger's violation was not willful, its liability would not be
decreased, as we find that its violation was repeated.
10. Krieger argues that its transmissions 21375.0 MHz were done without
its knowledge and that it if these transmissions were repeated or
continuous, such operation cannot be attributed to Krieger. We
disagree. Section 312(f)(2) of the Act defines "repeated" as "the
commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day." In this
case, the evidence is clear, and Krieger admits, that its operation of
WQCC468 on 21375.0 MHz occurred for more than one day. Therefore, we
find no merit to this argument.
11. We are also concerned by the statement in the affidavit provided by
the radio service company concerning the reciprocal frequency,
licensed by Mexico, for Krieger's cross-border microwave station. As
stated in the NAL, and on the WQCC468 license application filed by
Krieger, the reciprocal frequency at issue here is 21229.25 MHz, not
21375.0 MHz. We are troubled that Krieger attached an affidavit to its
Response that reflects that Krieger either remains unaware of the
specific frequencies upon which it is licensed to operate or
apparently may now be operating on an unauthorized frequency in
Mexico. The only frequencies licensed for use by WQCC468 were 22461.25
MHz, licensed by the United States, and 22129.25 MHz, licensed by
Mexico.
12. Finally, Krieger asserts that it took prompt action to correct its
mistake concerning its operations on 21375.0 MHz. As the San Diego
Office stated in the NAL, the Commission has consistently held that a
licensee is expected to correct errors when they are brought to the
licensee's attention and that such correction is not grounds for a
downward adjustment in the forfeiture.
13. 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 Krieger
willfully and repeatedly violated Section 1.903(a) of the Rules.
Considering the entire record and the factors listed above, we find
that neither reduction nor cancellation of the proposed $4,000
forfeiture is warranted.
IV. ORDERING CLAUSES
14. 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, Norman Krieger, Inc.,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for
willfully and repeatedly violating Section 1.903(a) of the Rules.
15. 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.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Norman
Krieger, 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 C.F.R. S 1.903(a).
See 47 C.F.R. S 101.147(s).
In its Response, Krieger notes that the San Diego Office incorrectly
described Krieger's business as a manufacturer of hotel bedding and
fabrics.
21377.74 MHz is within the maximum allowable tolerance of microwave
channel 21375.0 MHz. See 47 C.F.R. S 101.147(s).
According to Commission's records, however, the reciprocal frequency for
the WQCC468 license is 21229.25 MHz.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940006
(Enf. Bur., Western Region, San Diego Office, released September 28,
2005).
See 47 C.F.R. S 101.147(s).
In its Response, Krieger incorrectly states that the NAL found Krieger in
violation of Section 301 of the Act. As stated above, and in the NAL, the
violation concerned Section 1.903 of the Rules. We will treat Krieger's
argument concerning Section 301 of the Act as if it concerns Section 1.903
of the Rules, in our consideration of Krieger's Response.
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 312(f)(1).
Response at 3.
Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863 - 21864 (2002)
(quoting Triad Broadcasting Company, Inc., 96 FCC 2d 1235, 1244 (1984)).
Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
47 U.S.C. S 312(f)(2).
NAL at n.5.
See File No. 00181061 ("Application").
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 1.903(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1673
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Federal Communications Commission DA 06-1673