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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-328
Hare Planting Co., Inc. ) NAL/Acct. No. 200732100003
Newport, Arkansas ) FRN # 0014329353
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 20, 2006 Released: November 22, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Hare
Planting Co., Inc. ("Hare Planting"), former licensee of Private Land
Mobile Radio Service ("PLMRS") station WNQC202, in Newport, Arkansas,
apparently liable for a forfeiture in the amount of five thousand two
hundred dollars ($5,200) for operating a PLMRS station without
Commission authority and for failing to file a timely renewal
application for the station. Hare Planting acted in apparent willful
and repeated violation of Section 301 of the Communications Act of
1934, as amended, ("Act") and Sections 1.903(a) and 1.949(a) of the
Commission's Rules ("Rules").
II. background
2. Hare Planting was granted a PLMRS station license under call sign
WNQC202 on May 28, 1999, with an expiration date of August 14, 2004.
On November 29, 2005, Hare Planting filed a request for Special
Temporary Authority ("STA") to continue operating its PLMRS station.
The Wireless Telecommunications Bureau granted Hare Planting STA to
continue operating the station under call sign WQDY686 on December 1,
2005. The STA expired on May 30, 2006. On June 29, 2006, Hare Planting
filed another STA request to continue operating its PLMRS station. The
Wireless Telecommunications Bureau granted Hare Planting STA to
continue operating the station under call sign WQFF365 on June 30,
2006. On July 17, 2006, Hare Planting filed an application for a new
PLMRS station license. The Wireless Telecommunications Bureau granted
Hare Planting a new license under call sign WQFH745 on July 19, 2006.
3. Because it appeared that Hare Planting may have operated the PLMRS
station after the expiration of its license under call sign WNQC202,
the Wireless Telecommunications Bureau referred this case to the
Enforcement Bureau for investigation and possible enforcement action.
On September 13, 2006, the Enforcement Bureau's Spectrum Enforcement
Division issued a letter of inquiry ("LOI") to Hare Planting.
4. In its September 21, 2006 response to the LOI, Hare Planting stated
that it first became aware that its license under call sign WNQC202
had expired on or about November 29, 2005. Citing "ignorance of the
expiration date of the license" as the basis for its failure to timely
renew its license, Hare Planting further stated that once it
discovered the expiration of its license, it immediately filed a
request for STA to continue operating the station. Hare Planting
admitted that it continued to operate the station beyond the license
expiration date without Commission authorization. Specifically, Hare
Planting explained that between the period of August 14, 2004 and
December 1, 2005, it continued operating the station in its farming
business "until it was discovered the license had expired and an STA
was in place."
III. discussion
5. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by a wireless radio station except under,
and in accordance with, a Commission granted authorization.
Additionally, Section 1.949(a) of the Rules requires that licensees
file renewal applications for wireless radio stations, "no later than
the expiration date of the authorization for which renewal is sought,
and no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates.
6. As a Commission licensee, Hare Planting was required to maintain its
authorization in order to operate its PLMRS station. Hare Planting
admitted that it operated the PLMRS station without Commission
authority from the station's license expiration date of August 14,
2004, until November 29, 2005. By operating its PLMRS station for
approximately 15 months without an instrument of authorization, Hare
Planting apparently violated Section 301 of the Act and Section
1.903(a) of the Rules. Hare Planting also acted in apparent violation
of Section 1.949(a) of the Rules by failing to file a timely renewal
application for the station.
1. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeatedly" means more than once. Based upon the record
before us, it appears that Hare Planting's violations of Section 301
of the Act and Sections 1.903(a) and 1.949(a) of the Rules were
willful and repeated.
2. In determining the appropriate forfeiture amount, Section 503(b)(2)(D)
of the Act directs us to consider factors, such as "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 such other matters as justice may
require." Having considered the statutory factors, as explained below,
we find it appropriate to downwardly adjust the proposed aggregate
forfeiture from $6,500 to $5,200 based upon Hare Planting's voluntary
disclosure of its violations.
3. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information and ten thousand dollars ($10,000) for operation of a
station without Commission authority. As the Commission recently held,
a licensee's failure to timely file a renewal application and its
continued operations without authorization constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Hare Planting's separate violations.
4. Consistent with precedent, we propose a $1,500 forfeiture for Hare
Planting's failure to file the renewal application for its PLMRS
station within the time period specified in Section 1.949(a) of the
Rules. Additionally, we propose a $5,000 forfeiture for Hare
Planting's continued operation of its PLMRS station after the
expiration of its license on August 14, 2004. In proposing a $5,000
forfeiture for Hare Planting's unauthorized operations, we recognize
that the Commission considers a licensee who operates a station with
an expired license in better stead than a pirate broadcaster who lacks
prior authority, and thus downwardly adjust the $10,000 base
forfeiture amount accordingly. Thus, we propose an aggregate
forfeiture of $6,500.
5. As a Commission licensee, Hare Planting is charged with the
responsibility of knowing and complying with the terms of its
authorization, the Act and the Rules, including the requirement to
timely renew the authorization for its PLMRS station. We do find,
however, that a downward adjustment of the proposed aggregate
forfeiture from $6,500 to $5,200 is warranted because Hare Planting
made voluntary disclosures to Commission staff and undertook
corrective measures after learning of its violations, but prior to any
Commission inquiry or initiation of enforcement action.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Hare Planting IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of five thousand two hundred dollars ($5,200)
for the willful and repeated violation of Section 301 of the Act and
Sections 1.903(a) and 1.949(a) of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Hare Planting 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 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. A request for
full payment under an installment plan should be sent to: Associate
Managing Director-Financial Operations, 445 12^th Street, S.W., Room
1-A625, Washington, D.C. 20554.
10. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
11. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner'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. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Marvin B. Hare, Jr., President, Hare
Planting Co., Inc., 2600 Highway 17 South, Newport, Arkansas 72112.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. SS 1.903(a) and 1.949(a).
STA File No. 002393814 (granted December 1, 2005). The Wireless
Telecommunications Bureau granted the STA without prejudice to any future
FCC enforcement action against the company in connection with unauthorized
operation of its radio facilities.
STA File No. 0002667650 (granted June 30, 2006). The Wireless
Telecommunications Bureau granted the STA without prejudice to any future
FCC enforcement action against the company in connection with unauthorized
operation of its radio facilities.
See License File No. 0002684736 (granted July 19, 2006).
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Marvin
B. Hare, Jr., Hare Planting Co., Inc. (September 13, 2006).
See Letter from Marvin Hare, Hare Planting Co., Inc. to Jacqueline
Johnson, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (September 21, 2006).
Id. at 2.
Id. at 2.
Id. at 1.
Id. at 2.
Id. at 1-2.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
It also appears from the record that Hare Planting operated the station
without authorization between May 30, 2006, when its first STA expired,
and June 29, 2006, when it filed its second STA request.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991); see also
WCS Communications, Inc., 13 FCC Rcd 6691 (WTB, Enf. and Consumer Info.
Div., 1998) (finding that a licensee's inadvertent failure to file timely
renewal applications constitutes a repeated violation that continues until
the date the license is renewed).
47 U.S.C. S 503(b)(2)(D). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17110 (1997), recon. denied (1999).
47 C.F.R. 1.80(b).
See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004) (assessing
proposed forfeitures of $5,000 and $1,500 against a broadcaster who both
operated its station for 14 months without Commission authority and failed
to timely file its renewal application) ("Discussion Radio").
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
for failure to file a timely renewal application for a broadcast station);
see also Gilmore Broadcasting Corp., 21 FCC Rcd 6284, 6286-87 (Enf. Bur.,
Spectrum Enf. Div., 2006) ("Gilmore"); Criswell College, 21 FCC Rcd 5106,
5109 (Enf. Bur., Spectrum Enf. Div., 2006) ("Criswell"); National Weather
Networks, Inc., 21 FCC Rcd 3922, 3925 (Enf. Bur., Spectrum Enf. Div.,
2006) ("NWN"); Journal Broadcast Corporation, 20 FCC Rcd 18211, 18213
(Enf. Bur., Spectrum Enf. Div., 2005) ("Journal Broadcast"); Shared Data
Networks, LLC, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div.,
2005) ("SDN").
Under Section 503(b)(6) of the Act, 47 U.S.C. S 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a NAL. Section 503(b)(6), however, does
not bar us from considering Hare Planting's prior conduct in determining
the appropriate forfeiture amount for violations that occurred within the
one-year statutory period. See Globcom, Inc. d/b/a Globcom Global
Communications, 18 FCC Rcd 19893, 19903 P 23 (2003), forfeiture ordered,
21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc., 15 FCC Rcd 9660,
9671 P8 (2000); Cate Communications Corp., 60 RR 2d 1386, 1388 P 7 (1986);
Eastern Broadcasting Corp., 10 FCC 2d 37, 37-38 P 3 (1967). Accordingly,
while we take into account the continuous nature of the violations in
determining the appropriate forfeiture amount, our proposed forfeiture
relates only to Hare Planting's apparent violations that have occurred
within the past year.
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); see also Gilmore, 21 FCC Rcd at 6285; Criswell, 21 FCC Rcd at
5109; NWN, 21 FCC Rcd at 3925; Journal Broadcast, 20 FCC Rcd at 18213;
SDN, 20 FCC Rcd at 18187.
See Discussion Radio, 19 FCC Rcd at 7437; see also Gilmore, 21 FCC Rcd at
6286-87; Criswell, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd at 3926; Journal
Broadcast, 20 FCC Rcd at 18214; SDN, 20 FCC Rcd at 18187.
See Petracom of Texarkana, LLC, 19 FCC Rcd 8096, 8097-8098 (Enf. Bur.
2004); see also Gilmore, 21 FCC Rcd at 6286-87; Criswell, 21 FCC Rcd at
5109; NWN, 21 FCC Rcd at 3926; Journal Broadcast, 20 FCC Rcd at 18214;
SDN, 20 FCC Rcd at 18187.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311 and 1.80.
47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2337
2
Federal Communications Commission DA 06-2337