Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-05-SD-004
Lamkin Corporation )
NAL/Acct. No.: 200532940007
Licensee of WQBQ706 )
FRN: 0010769438
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 Lamkin Corporation
("Lamkin"), 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 Lamkin
after determining that Lamkin apparently willfully and repeatedly
operated microwave radio transmitting equipment on an unauthorized
microwave channel of 21245.0 MHz in San Diego, California. In this
Order, we consider Lamkin's argument that Lamkin did not willfully or
repeatedly operate in violation of the Rules.
II. BACKGROUND
2. On January 11, 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 Lamkin
Corporation, a manufacture of golf club grips, at 6530 Gateway Park
Drive, San Diego, California. The frequency measurement showed that
this microwave radio station was operating on microwave channel
21245.0 MHz.
3. The agent returned to the Lamkin office on February 4, 2005, and again
measured the frequency of microwave radio station. The measurement
showed that the station was operating on microwave channel 21245.0
MHz, the same as the January 11, 2005 measurement. A review of the
Commission's database revealed that Lamkin has authorization to
operate a Private Fixed Point-to-Point Microwave radio station under
license WQBQ706 at the 6530 Gateway Park Drive location. However, the
authorized frequency for this microwave radio station is 22475.25 MHz.
4. On February 28, 2005, the agent returned to the Lamkin office and
again found that microwave radio station WQBQ706 was operating on
microwave channel 21245.0 MHz. At this time the agent conducted an
inspection of the radio station with the Lamkin's office manager. The
office manager provided the agent a copy of FCC authorization for
WQBQ706 which indicated an authorized frequency of 22475.25 MHz for
the station.
5. On March 11, 2005, the San Diego Office sent a Letter of Inquiry
("LOI") to Lamkin concerning its unauthorized operation on 21243.5
MHz, in violation of Section 1.903(a) of the Commission's Rules. The
San Diego Office received a reply to the LOI on March 24, 2005. The
reply stated that this radio station was used for Lamkin's internal
business communications between their U.S and Mexican facilities.
Lamkin stated that the receiver and transmitter frequencies of the
microwave radio station had been installed backwards and that the
improper operation had begun in September of 2003. The reply indicated
that the proper receiver and transmitter frequencies had been
installed and that the station was operating on the proper frequency.
A San Diego agent confirmed that WQBQ706 was operating on frequency
22475.25 MHz later that day.
6. On September 28, 2005, the San Diego Office issued a NAL in the amount
of $4,000 to Lamkin. In the NAL, the San Diego Office found that
Lamkin apparently willfully and repeatedly operated microwave radio
transmitting equipment on an unauthorized microwave channel of 21245.0
MHz in San Diego, California. Lamkin filed a response to the NAL on
October 28, 2005 ("Response"). In its Response, Lamkin 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. Lamkin also argues that it did not knowingly
cause the transmissions to be repeated. Finally, Lamkin asserts that
it corrected the error as soon as it was notified by the San Diego
Office.
III. DISCUSSION
7. 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.
8. 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 January 11, 2005, February
4, 2005, and February 28, 2005, San Diego agents determined that
Lamkin was operating a microwave radio station, WQBQ706, on the
unauthorized microwave channel of 21245.0 MHz. Further, Lamkin
admitted to the San Diego Office that its microwave radio station had
been operating on the wrong frequency ever since it was first
installed in 2003.
9. In its Response, Lamkin acknowledges that it operated its microwave
station WQBQ706 on 21245.0 MHz. However, Lamkin 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 . . . ." Lamkin states that it "did not know"
and "did not plan in advance to operate" on microwave channel 21245.0
MHz. Lamkin 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 22475.25 MHz on the
equipment, but programmed the equipment to transmit on the reciprocal
frequency, for this cross-border operation, of 21245.0 MHz. Lamkin
argues that it therefore did not consciously or deliberately operate
its microwave station on 21245.0 MHz.
10. 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, Lamkin consciously and
deliberately operated WQBQ706. Lamkin apparently relied on its radio
service company to ensure the station operated within the parameters
of the WQBQ706 authorization. Lamkin's radio service company, after
contracting with the equipment company for the manufacture of the
WQBQ706 transmitting equipment, failed for almost two years to
discover the unauthorized frequency being used by the WQBQ706
transmitter. Therefore, Lamkin operated WQBQ706 on an unauthorized
frequency for almost two years until being notified by the San Diego
Office. A licensee is required to operate on the frequency stated in
its authorization, and while Lamkin apparently relied on its radio
service company to ensure its compliance with the WQBQ706
authorization, we are compelled to treat the error by Lamkin's radio
service company as an error by Lamkin itself. Therefore, we find that
Lamkin's violation was willful. However, even if we were to find that
Lamkin's violation was not willful, its liability would not be
decreased, as we find that its violation was repeated.
11. Lamkin argues that its transmissions on 21245.0 MHz were done without
its knowledge and that it if these transmissions were repeated or
continuous, such operation cannot be attributed to Lamkin. 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 Lamkin admits, that its operation of
WQBQ706 on 21245.0 MHz occurred for more than one day. Therefore, we
find no merit to this argument.
12. Finally, Lamkin asserts that it took prompt action to correct its
mistake concerning its operations on 21245.0 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 Lamkin
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, Lamkin Corporation 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 Lamkin
Corporation, 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).
The actual measurement taken by the agent showed that the station was
operating on 21243.5 MHz.
21243.5 MHz is within the maximum allowable tolerance of microwave channel
21245.0 MHz. See 47 C.F.R. S 101.147(s).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940007
(Enf. Bur., Western Region, San Diego Office, released September 28,
2005).
See 47 C.F.R. S 101.147(s).
In its Response, Lamkin incorrectly states that the NAL found Lamkin 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 Lamkin's
argument concerning Section 301 of the Act as if it concerns Section 1.903
of the Rules, in our consideration of Lamkin'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).
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 06-1674
1
2
Federal Communications Commission DA 06-1674