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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-05-IH-2737
)
Spectracom, LLC NAL Account No.
) 200732080004
Applicant for Assignment of Private Land
Mobile Stations WNFD452, WNHG245 and ) FRN No. 0003730710
WNHU507
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 13, 2006 Released: November 13, 2006
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Spectracom, LLC ("Spectracom"), applicant for assignment of
Private Land Mobile stations WNFD452, WNHG245, and WNHU507 (the
"Stations"), apparently willfully violated Section 1.948 of the
Commission's rules by taking control of the Stations and operating
those Stations without prior FCC notification and approval.
Specifically, Spectracom took control of the Stations in June 2005,
but failed to file an assignment application until November 14, 2005.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Spectracom is apparently liable for
forfeiture in the amount of twelve thousand dollars ($12,000).
II. BACKGROUND
2. In June 2005, Spectracom purchased the Stations from Robert Crow, DBA
Valley Comm. of Monte Vista, Co. ("Valley Comm"). On November 14,
2005, Spectracom filed the Application for Commission consent to the
assignment of the licenses from Valley Comm to Spectracom. Spectracom
reported in the Application that the assignment had already occurred.
In response to a telephone inquiry from the Wireless
Telecommunications Bureau licensing staff regarding the answer to
Question 7 in the Application, Spectracom responded on November 23,
2005, and explained that it had purchased the community repeaters from
Valley Comm in June, 2005. Spectracom further asserted, in its
response, that it began operating the systems on the date of purchase
and continued until the date of the response on November 23, 2005.
3. On November 23, 2005, the Commission sent a letter to Spectracom
indicating that the assignment in question was apparently consummated
prior to Commission approval. In the same letter, the Commission
consented to the assignment of licenses without prejudice to
subsequent enforcement action. Spectracom did not file a notification
of consummation following the consent to assignment as required by
Section 1.948(d), and therefore is not the licensee of record for the
Stations.
III. DISCUSSION
4. Section 1.948 of the Commission's rules requires that "Authorizations
in the Wireless Radio Services may be assigned by the licensee to
another party, voluntarily or involuntarily, directly or indirectly,
or the control of a license holding such authorizations may be
transferred, only upon application to and approval by the Commission."
Thus, under Section 1.948 of the Commission's rules, a licensee in the
Wireless Radio Services involved in an assignment of authorization
must apply to and receive authorization from the Commission regarding
the terms of such transfer before the transfer is consummated. In the
instant case, the record shows that Spectracom purchased three
licenses for the Stations from Valley Comm in June 2005 and
immediately began operating the systems without prior FCC approval.
Therefore, these assignments were in violation of Section 1.948 of the
Commission's rules.
5. Section 503(b) of the Act provides that any person who willfully fails
to comply substantially with the terms and conditions of any license,
or willfully fails to comply with any of the provisions of the Act or
of any rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful" as used
in Section 503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly. Based on the evidence before us, we
find that Spectracom, LLC apparently willfully violated Section 1.948
of the Commission's Rules by failing to notify and receive approval
from the Commission for the assignment of three licenses prior to
consummation of the transaction.
6. Pursuant to Section 1.80 of the Rules, the base forfeiture amount for
engaging in an unauthorized transfer of substantial control of a
licensee is $8,000. Section 1.80(b)(4) of the Commission's rules also
specifies that, in determining the amount of a forfeiture penalty, the
Commission or its designee will take into account "the nature,
circumstances, extent, and gravity of the violations 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." If we multiply this amount by the number of licenses at
issue, we would find Spectracom apparently liable for a forfeiture of
$24,000. In the instant case, the assignment of the licenses resulted
from a single transaction. We note that, in an analogous situation,
the Commission held that multiplying this base forfeiture amount by
the number of licenses at issue would result in an excessive
forfeiture, and that the number of licenses involved should be
considered an aggravating factor. Considering the circumstances of
this case, the nature of the licenses at issue, the relatively brief
period of operation (approximately five (5) months) prior to filing
the Application, the relatively few authorizations at issue, and our
precedent, we find that a reduction in the total forfeiture amount is
appropriate. Applying the factors set forth in Section 1.80 and
Section 503(b)(2)(D) of the Act to the instant case, we conclude that
Spectracom is apparently liable for a $12,000 forfeiture.
IV. ORDERING CLAUSES
7. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.80 of the Commission's Rules, Spectracom, LLC is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of $12,000 for
willfully violating Section 1.948 of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within 30 days of the release date of this Notice
of Apparent Liability for Forfeiture, Spectracom, LLC SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
9. 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 in the
caption. 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.
10. IT IS FURTHER ORDERED that the response, if any, shall be mailed to
Hillary S. DeNigro, Acting Chief, Investigation and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12^th
Street, S.W., Suite 4-C330, Washington, D.C. 20554, and must include
the NAL/Acct. No. referenced in the caption.
11. IT IS FURTHER ORDERED that the Commission shall not consider reducing
or canceling a forfeiture in response to a claim of inability to pay
unless the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared according
to generally accepted accounting practices ("GAAP"); or (3) some other
reliable and objective documentation that accurately reflects the
respondent'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.
12. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, DC 20554.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Spectracom, LLC at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Acting Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 C.F.R. S 1.948.
See FCC Wireless Telecommunications Bureau Application for Assignments of
Authorization and Transfers of Control, File No. 0002379825, at 1
("Application").
See 47 U.S.C. S 503(b).
See Letter from Paul McCarty, Spectracom, LLC, to Sharon Weigle, Public
Safety and Critical Infrastructure Division, Wireless Telecommunications
Bureau, Federal Communications Commission, dated November 23, 2005
("McCarty Letter").
See id. at 1.
See Application at 1, Question 7.
See McCarty Letter at 1.
See id.
See Letter from Tracy Simmons, Associate Chief, Licensing Operations,
Public Safety and Critical Infrastructure Division, Federal Communications
Commission, to Spectracom, LLC, Attn. Paul Michael McCarty, dated November
23, 2005.
See id.
See 47 C.F.R. S 1.948(d).
See 47 C.F.R. S 1.948(a).
See id.
See McCarty Letter at 1.
See 47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, which applies to violations for which
forfeitures are assessed under Section 503(b) of the Act, provides that
"[t]he term 'willful', when used with reference to the commission or
omission of any act, 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 . . . ." 47 U.S.C. S 312(f)(1). See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
See 47 C.F.R. S1.80 (2005).
47 C.F.R. S 1.80(b)(4). This rule implements Section 503(b)(2)(D) of the
Act, which requires that these factors be considered by the Commission or
its designee when assessing forfeitures. See 47 U.S.C. S 503(b)(2)(D).
See 47 C.F.R. S 1.80.
See Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669,
9672 (2000) (considering voluntary disclosure, duration of period of
unauthorized operation prior to filing corrective applications, and the
number of licenses involved to be important factors in determining the
forfeiture amount to be $40,000 for the unauthorized substantial transfer
of control of 17 licenses).
See 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.948.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-2301
2
Federal Communications Commission DA 06-2301