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 No. EB-06-SE-050       
                                                        
     Criswell College   )   NAL/Acct. No. 200632100013  
                                                        
     Dallas, Texas      )   FRN # 0008702540            
                                                        
                        )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 8, 2006     Released: May 11, 2006

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I.  introduction

    1. In this Notice of Apparent Liability for Forfeiture, we find Criswell
       College ("Criswell"), former licensee of satellite earth station,
       E940272, Dallas, Texas, apparently liable for forfeiture in the amount
       of four thousand dollars ($4,000) for operating its earth station
       without Commission authority and for failing to timely file a renewal
       application. Criswell acted in apparent willful and repeated violation
       of Section 301 of the Communications Act of 1934, as amended, ("Act")
       and Sections 25.102(a) and 25.121(e) of the Commission's Rules
       ("Rules").

   II.  background

    2. Criswell was granted a license for its fixed-satellite service earth
       station, E940272, on June 24, 1994, with an expiration date of June
       24, 2004. On December 7, 2005, Criswell filed with the Commission's
       International Bureau an application for a new earth station license.
       On December 8, 2005 Criswell filed a request for special temporary
       authority ("STA") to continue operating its earth station pending
       Commission action on the license application. The International Bureau
       granted Criswell's STA on December 13, 2005, and granted Criswell a
       new earth station license, call sign E050379, on January 17, 2006.

    3. Because it appeared that Criswell may have operated the earth station
       after the expiration of its license, the International Bureau referred
       this case to the Enforcement Bureau for investigation and possible
       enforcement action. On February 27, 2006, the Enforcement Bureau's
       Spectrum Enforcement Division issued a letter of inquiry ("LOI") to
       Criswell.

    4. In its April 7, 2006 response to the LOI, Criswell stated that it
       first became aware that its earth station license E940272 may have
       expired on December 5, 2005. Citing an "inadvertent error" as the
       basis for its failure to timely renew its license, Criswell explained
       that once it discovered the expiration of its license, it filed for a
       new earth station license on December 7, 2005 and an STA on December
       8, 2005. Further, Criswell admitted that it continued to operate its
       earth station beyond the license expiration date without Commission
       authorization. Specifically, Criswell explained that it mistakenly
       believed its license for expired E940272 was in effect for a term of
       fifteen years not ten.

   III.   discussion

    5. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
       use or operation of any apparatus for the transmission of energy or
       communications or signals by an earth station except under, and in
       accordance with a Commission granted authorization. Additionally,
       Section 25.121(e) of the Rules requires that licensees file renewal
       applications for earth stations "no earlier than 90 days, and no later
       than 30 days, before the expiration of the license." Absent a timely
       filed renewal application, an earth station license automatically
       terminates.

    6. As a Commission licensee, Criswell was required to maintain its
       authorization in order to operate its earth station. Based upon the
       information before us, Criswell operated the earth station without
       Commission authority from the station's license expiration date of
       June 24, 2004, until the STA grant date of December 13, 2005. By
       operating its earth station for approximately eighteen months without
       an instrument of authorization, Criswell apparently violated Section
       301 of the Act and Section 25.102(a) of the Rules. Criswell also acted
       in apparent violation of Section 25.121(e) of the Rules by filing its
       license renewal application on December 7, 2005, more than eighteen
       months beyond the 30-day requirement prescribed by the Rules.

    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 Criswell's violations of Section 301 of the
       Act and Sections 25.102(a) and 25.121(e) 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 $4,000 based upon Criswell's voluntary
       disclosure of its violations and its history of compliance.

    3. In its response to the LOI, Criswell argues that it only committed one
       violation: failure to timely file its renewal application. We
       disagree. In Discussion Radio, the licensee was sanctioned both for
       failing to timely file a license renewal application and for operating
       its station without authorization for the time between the expiration
       of the license and the untimely renewal filing. Thus, Criswell'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.

    4. Further, we are not persuaded by Criswell's reliance upon Section 558
       of the Administrative Procedure Act to support its assertion that one
       violation occurred. The portion of Section 558 to which Criswell cites
       provides that "[w]hen the licensee has made timely and sufficient
       application for a renewal or a new license in accordance with agency
       rules, a license with reference to an activity of a continuing nature
       does not expire until the application has been finally determined by
       the agency." Section 558 is premised upon the presumption that a
       required application is actually timely filed. Without a timely filed
       application, one does not get the benefit afforded by Section 558.
       Clearly, Criswell did not file its renewal application on time. Thus,
       there is no presumption of authorization to continue to operate until
       the Commission determines otherwise. Moreover, nothing in Section 558
       addresses Criswell's assertion that failing to file a timely renewal
       application and operating after the license has expired results in the
       commission of only one violation and we do not believe Section 558
       supports such a position.

    5. 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. Consistent with precedent, we
       propose a $1,500 forfeiture for Criswell's failure to file the renewal
       application for its earth station within the time period specified in
       Section 25.121(e) of the Rules. Additionally, we propose a $5,000
       forfeiture for Criswell's continued operation of its earth station
       beyond June 24, 2004. In proposing a $5,000 forfeiture for Criswell'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.

    6. As a Commission licensee, Criswell is charged with the responsibility
       of knowing and complying with the terms of its authorizations, the Act
       and the Rules, including the requirement to timely renew the
       authorization for its earth station. We do find, however, that a
       downward adjustment of the proposed aggregate forfeiture from $6,500
       to $4,000 is warranted because Criswell 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 and because of Criswell's history of overall
       compliance.

   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,
       Criswell IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
       in the amount of four thousand ($4,000) for the willful and repeated
       violation of Section 301 of the Act and Sections 25.102(a) and
       25.121(e) 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, Criswell 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 Douglas E. Price, Vice President for
       Operations, Criswell College, Box 619000, Dallas, Texas 57261 and to
       its counsel, Midlen Law Center, 7618 Lynn, Chevy Chase, MD 20815.

   FEDERAL COMMUNICATIONS COMMISSION

   Joseph P. Casey

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   47 U.S.C. S 301.

   47 C.F.R. SS 25.102(a) and 25.121(e).

   See File No. SES-STA-20051208-01726 (granted December 13, 2005).

   See File No. SES-LIC-2005012070-01710 (granted January 17, 2006). The new
   license for earth station E050379 was granted by the International Bureau
   without prejudice to any future FCC enforcement action against the company
   in connection with unauthorized operation of its radio facilities.

   See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission to Dr.
   Ronald L. Harris, Executive Vice President/General Manager, Criswell
   College (February 27, 2006).

   See Letter from Douglas E. Price, Vice President for Operations, Criswell
   College to Jacqueline Ellington, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission (April 7, 2006).

   Id. at 1.

   Id. at 2.

   Id.  at 1.

   Id. at 1.

   Id. at 2.

   47 C.F.R. S 25.121(e).

   47 C.F.R. S 25.161(b).

   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).

   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).

   See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004). We note that,
   although Criswell asserts that the full Commission has not tested this
   approach of assessing two separate forfeitures for these violations,
   Discussion Radio was a Commission decision.

   5 U.S.C. S 558.

   47 C.F.R. 1.80(b).

   See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing a $1,500
   forfeiture for failure to file a timely renewal application for a
   broadcast station); see also Self Communications, Inc., 15 FCC Rcd 18661,
   18664-65 (WTB, Public Safety and Private Wireless Div., 2000) (proposing a
   $1,500 forfeiture for failure to file a timely renewal application for a
   218-219 MHz service); Vincent Communications, Inc., 15 FCC Rcd 8432 (WTB,
   Enf. and Consumer Info. Div., 1999) (proposing an aggregate $4,500
   forfeiture for failure to timely renewal applications for three paging
   stations), forfeiture ordered, 15 FCC Rcd 18263 (Enf. Bur. 2000); Snider
   Communications Corp., 14 FCC Rcd 20047, 20048 (WTB, Enf. and Consumer
   Info. Div., 1999) (proposing an aggregate $21,000 forfeiture for failure
   to file timely renewal applications for 14 paging stations).

   See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing a $5,000
   forfeiture for operating a station for 14 months beyond the expiration of
   its license instead of a $10,000 forfeiture).

   See Discussion Radio, 19 FCC Rcd at 7437; William S. Mills, 15 FCC Rcd
   20071, 20072 (Enf. Bur. 2000); see also Peacock's Radio and Wild's
   Computer Service, Inc., 16 FCC Rcd 15016, 15017 (2001).

   See, e.g., Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 P 4 (2003),
   recon. denied, 18 FCC Rcd 25481 (2003); Emery Telephone, 13 FCC Rcd 23854,
   23858 (1998), recon. denied , 15 FCC Rcd 7181 (1999); Petracom of
   Texarkana, LLC, 19 FCC Rcd 8096, 8097-98 PP 5-6 (Enf. Bur. 2004); American
   Family Association, 17 FCC Rcd 18135, 18137 (Enf. Bur. 2002), recon.
   denied, 18 FCC Rcd 2413 (Enf. Bur. 2003); but see American Paging, Inc.,
   12 FCC Rcd 10417, 10420 (WTB, Enf. and Consumer Info. Div., 1997) (finding
   that the mitigating effect of voluntary disclosure was abrogated by the
   licensee's delay).

   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 06-996

   2

   Federal Communications Commission DA 06-996