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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-325
Imperial Sugar Company ) NAL/Acct. No. 200732100017
Sugar Land, Texas ) FRN # 0015230519
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 13, 2007 Released: March 15, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Imperial
Sugar Company ("Imperial"), former licensee of Private Land Mobile
Radio Service ("PLMRS") station WPPD863, in Sugar Land, Texas,
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. Imperial 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. Imperial was granted a PLMRS station license under call sign WPPD863
on November 4, 1999, with an expiration date of November 4, 2004.
Imperial failed to file for renewal of the station's license and the
license expired on its own terms on November 4, 2004. On June 28,
2006, Imperial filed a request for Special Temporary Authority ("STA")
to continue operating its PLMRS station. The Wireless
Telecommunications Bureau granted Imperial STA to continue operating
the station under call sign WQFG665 on July 11, 2006. On December 13,
2006, Imperial filed an application for a new PLMRS station license.
The Wireless Telecommunications Bureau granted Imperial a new license
under call sign WQGD950 on December 19, 2006.
3. Because it appeared that Imperial may have operated the PLMRS station
after the expiration of its license under call sign WPPD863, the
Wireless Telecommunications Bureau referred this case to the
Enforcement Bureau for investigation and possible enforcement action.
On October 6, 2006, the Enforcement Bureau's Spectrum Enforcement
Division issued a letter of inquiry ("LOI") to Imperial to investigate
whether it operated without authority and failed to file a renewal.
4. In its October 30, 2006 response to the LOI, Imperial stated that it
first became aware that its license under call sign WPPD863 had
expired on June 22, 2006. Imperial explained that it failed to file a
timely license renewal application for station WPPD863 because its
refinery closed in June 2002, the base station was removed, and there
were no contact personnel available at the refinery to receive
information for the renewal of the radio license. Imperial admitted
that it continued to operate the station beyond the license expiration
date without Commission authorization. Specifically, Imperial
indicated that between the period of November 14, 2004 and July 11,
2006, it continuously operated 4 of the 10 units originally licensed
on a mobile to mobile basis for maintenance communications between the
refinery and the corporate office. Imperial further stated that once
it discovered the expiration of its license, its legal department
immediately contacted the FCC to confirm that its license had expired
and began working with a frequency coordinator to file a request for
STA to continue operating the station.
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, Imperial was required to maintain its
authorization in order to operate its PLMRS station. Imperial admitted
that it operated the PLMRS station without Commission authority from
the station's license expiration date of November 14, 2004, until July
11, 2006. By operating its PLMRS station for approximately 20 months
without an instrument of authorization, Imperial apparently violated
Section 301 of the Act and Section 1.903(a) of the Rules. Imperial
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 Imperial'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)(E)
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."
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 Imperial's separate violations.
4. Consistent with precedent, we propose a $1,500 forfeiture for
Imperial'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 Imperial's
continued operation of its PLMRS station after the expiration of its
license on November 4, 2004. In proposing a $5,000 forfeiture for
Imperial'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, Imperial 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 Imperial 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,
Imperial 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, Imperial 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 William F. Schwer, Senior Vice-President
and General Counsel, Imperial Sugar Company, P.O. Box 9, 8016 Highway
90A, Sugar Land, Texas 77487.
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).
"Authorizations automatically terminate, without specific Commission
action, on the expiration date specified therein, unless a timely
application for renewal if filed." 47 C.F.R. S 1.955(a)(1).
See STA File No. 0002666571 (granted July 11, 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. 0002848097 (granted December 19, 2006).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Robert A. Peiser,
President and CEO, Imperial Sugar Company (October 6, 2006).
See Letter from William F. Schwer, Senior Vice-President, General Counsel,
Imperial Sugar Company to Celia Lewis, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (October 30, 2006).
Id. at 2.
Id.
Id.
Id.
Id.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387 (1991); see also WCS Communications, Inc., Notice of
Apparent Liability, 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)(E). 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, Report
and Order, 12 FCC Rcd 17087, 17110 (1997), recon. denied (1999).
47 C.F.R. 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 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 Hare Planting Co., Inc., Notice of Apparent Liability, 21 FCC Rcd
13517; Gilmore Broadcasting Corp., Notice of Apparent Liability, 21 FCC
Rcd 6284, 6286-87 (Enf. Bur., Spectrum Enf. Div., 2006) ("Gilmore");
Criswell College, Notice of Apparent Liability, 21 FCC Rcd 5106, 5109
(Enf. Bur., Spectrum Enf. Div., 2006) ("Criswell"); National Weather
Networks, Inc., Notice of Apparent Liability, 21 FCC Rcd 3922, 3925 (Enf.
Bur., Spectrum Enf. Div., 2006) ("NWN"); Journal Broadcast Corporation,
Notice of Apparent Liability, 20 FCC Rcd 18211, 18213 (Enf. Bur., Spectrum
Enf. Div., 2005) ("Journal Broadcast"); Shared Data Networks, LLC, Notice
of Apparent Liability, 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 Imperial'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, Notice of Apparent Liability for Forfeiture and Order, 18
FCC Rcd 19893, 19903 P 23 (2003), forfeiture ordered, 21 FCC Rcd 4710
(2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671 P8 (2000); Cate Communications Corp., Memorandum Opinion and
Order, 60 RR 2d 1386, 1388 P 7 (1986); Eastern Broadcasting Corp.,
Memorandum Opinion and Order,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 Imperial'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, Forfeiture Order, 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 07-1285
3
Federal Communications Commission DA 07-1285