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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-06-SE-323
Mitchell Electric Membership
Cooperative ) NAL/Acct. No. 200732100018
Camilla, Georgia ) FRN # 0006348742
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 27, 2007 Released: March 29, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Mitchell
Electric Membership Cooperative ("Mitchell Electric"), former licensee
of Private Land Mobile Radio Service ("PLMRS") station WNWZ353 in
Camilla, Georgia, apparently liable for a forfeiture in the amount of
seven thousand five hundred dollars ($7,500) for operating its PLMRS
station without Commission authority and for failing to file a timely
renewal application for the station. Mitchell Electric 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. On June 26, 2006, Mitchell Electric filed a request for Special
Temporary Authority ("STA") to continue operating its PLMRS station
WNWZ353 because the station license had expired on August 6, 2001. The
Wireless Telecommunications Bureau granted Mitchell Electric STA to
continue operating the station under call sign WQFH332 on July 14,
2006. On August 28, 2006, Mitchell Electric filed an application for a
permanent license for its PLMRS station. The new license was granted
on September 13, 2006, and the station was assigned call sign WQFQ938.
3. Because it appeared that Mitchell Electric may have operated the PLMRS
station after the expiration of its license under call sign WNWZ353,
the Wireless Telecommunications Bureau referred this case to the
Enforcement Bureau for investigation and possible enforcement action.
On November 3, 2006, the Enforcement Bureau's Spectrum Enforcement
Division issued a letter of inquiry ("LOI") to Mitchell Electric
seeking information regarding its failure to renew the station
license, and its operation of the station beyond the license
expiration date.
4. In its December 11, 2006 response to the LOI, Mitchell Electric stated
that it first became aware that its license under call sign WNWZ353
had expired on or about December 10, 2005. Mitchell cited inadvertence
and administrative oversight as the basis for its failure to timely
renew its license. Mitchell Electric admitted that it continued to
operate the station without Commission authorization because of the
nature of the work performed by it, and the concern for personnel and
public safety, on a daily basis from August 6, 2001 through July 14,
2006. Mitchell Electric also stated that it took measures to reinstate
the license as soon as possible.
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, Mitchell Electric was required to maintain
its authorization in order to operate its PLMRS station. Mitchell
Electric admitted that it operated the PLMRS station without
Commission authority on a daily basis from the station's license
expiration date of August 6, 2001 until July 14, 2006. By operating
its PLMRS station for approximately 5 years without an instrument of
authorization, Mitchell Electric apparently violated Section 301 of
the Act and Section 1.903(a) of the Rules. Mitchell Electric 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 Mitchell Electric'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." Having considered the statutory factors, as explained below,
we propose a total forfeiture of $7,500.
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. The Commission has recently held
that 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 Mitchell Electric's separate violations.
4. We propose a forfeiture of $6,000 for Mitchell Electric's continued
operation of station WNWZ353 beyond August 6, 2001. In proposing
$6,000 for the station'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. Consistent with recent precedent, the proposed
$6,000 forfeiture amount takes into account the fact that Mitchell
Electric's unauthorized operations spanned almost five years - from
August 6, 2001 through July 13, 2006. The $6,000 forfeiture relates to
Mitchell Electric's apparent violations that occurred within the past
year, but takes into account that those apparent violations were
continuous in nature. Additionally, consistent with precedent, we
propose a $1,500 forfeiture for Mitchell Electric's failure to file a
renewal application for its station within the time period specified
in Section 1.949(a) of the Rules. Thus, we propose an aggregate
forfeiture of $7,500 ($6,000 for unauthorized operations and $1,500
for failure to timely file a renewal application).
5. We find that Mitchell Electric's voluntary disclosures to Commission
staff and its efforts to come into compliance with Commission
requirements do not entitle the company to any downward adjustment of
the proposed $7,500 forfeiture. Although Mitchell Electric's
disclosures and compliance efforts preceded any Commission
investigation or initiation of enforcement action, we find the
company's actions were dilatory. As Mitchell Electric acknowledged, it
learned of its violation in December 2005, but waited until June 2006
- approximately six months - to notify Commission staff and seek
authority to operate the station. Under the circumstances, and
consistent with precedent, we find that no reduction of the proposed
forfeiture for voluntary disclosure or good faith efforts to comply is
warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Mitchell Electric IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand five hundred dollars ($7,500) 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, Mitchell Electric 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.
6. 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 Jimmy Clifton, Jr., Authorized
Representative, Mitchell Electric Membership Cooperative, 475 Cairo
Road, Camilla, Georgia 31730.
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. 0002662466 (granted July 14, 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.
File No. 0002728158 (granted September 13, 2006).
See Letter from Ricardo M. Durham, Senior Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission to James Clifton, Mitchell Electric Membership Cooperative
(November 3, 2006).
See Letter from Jimmy Clifton, Jr., to Jacqueline Ellington, Esq.,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (December 11, 2006) ("LOI Response").
Id. at 1.
See STA File No. 0002662466, Attachment 1, filed on June 26, 2006.
Mitchell Electric is a not-for-profit consumer-owned electric cooperative
that supplies energy to more than 25,000 residences, farms, and businesses
in southwest Georgia.
LOI Response at 1.
LOI Response at 1. The measures taken are not detailed in the LOI
Response.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
LOI Response at 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 for Forfeiture, 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). See also Sections
312(f)(1) and (2) of the Act, 47 U.S.C. S 312(f)(1) and (2), which apply
to violations for which forfeitures are assessed under Section 503(b) of
the Act ("[t]he term `willful,' ... 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 ..." and a continuous violation is "repeated" if it
continues for more than one day).
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 for Forfeiture, 19 FCC Rcd 7433, 7438 (2004) (proposing
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 $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); Shared Data Networks, LLC, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18184, 18186-18187 (Enf. Bur., Spectrum Enf. Div.,
2005) ("Shared Data") (proposing an $18,000 forfeiture - $6,000 per earth
station - for unauthorized operation over a period of 5 years); Journal
Broadcast Corporation, Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd 18211, 18213 (Enf. Bur., Spectrum Enf. Div., 2005) ("Journal
Broadcast") (proposing a $5,000 forfeiture for unauthorized operation for
1 year).
See Shared Data, 20 FCC Rcd at 18187 (proposing an aggregate forfeiture
amount of $18,000 for operating 3 earth stations for almost 5 years
without Commission authority ($6,000 each)).
Section 503(b)(6) of the Act, 47 U.S.C. S 503(b)(6) prohibits the
assessment of a forfeiture for violations that occurred more than a year
prior to the NAL, but does not bar us from taking into account the
continuous nature of violations in determining the appropriate enforcement
action and/or forfeiture amount. See, e.g., Globcom, Inc. d/b/a Globcom
Global Communications, Notice of Apparent Liability for Forfeiture and
Order, 18 FCC Rcd 19893, 19903 (2003), forfeiture ordered, 21 FCC Rcd
4710; Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669,
9671-72 (2000); Cate Communications Corp., Memorandum Opinion and Order,
60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum Opinion
and Order, 10 FCC 2d 37, 37-38 (1967), recon. denied, 11 FCC 2d 193, 195
(1967); Bureau D'Electronique Appliquee, Inc., Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 3445, 3447-48 (Enf. Bur., Spectrum
Enf. Div., 2005), forfeiture ordered, 20 FCC Rcd 17893 (Enf. Bur.,
Spectrum Enf. Div., 2005).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
for failure to timely file a renewal application for a broadcast station);
Shared Data, 20 FCC Rcd at 18187 (proposing an aggregate forfeiture amount
of $4,500 for failure to timely file renewal applications for 3 earth
stations); Journal Broadcast, 20 FCC Rcd at 18213) (proposing a $1,500
forfeiture for failure to timely file a renewal application for an earth
station); 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 timely file a 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 file renewal applications for 3 paging stations),
forfeiture ordered, 15 FCC Rcd 18263 (Enf. Bur. 2000).
See Local Phone Services, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 9974 (2006) (finding that although a downward
adjustment generally is appropriate where a violator makes voluntary
disclosures prior to Commission investigation or enforcement action, such
credit was unwarranted where the violator made no attempt to come into
compliance until 12 months after disclosure); Domtar Industries, Inc.,
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13813 (Enf.
Bur., Spectrum Enf. Div., 2006) (finding that although Domtar's
disclosures and compliance efforts preceded Commission investigation or
initiation of enforcement action, a downward adjustment was unwarranted
because Domtar's actions were dilatory); Sutro Corporation, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 20529, 20531, forfeiture
ordered 19 FCC Rcd 15274, 15275-76 (2004) (finding that a downward
adjustment for voluntary disclosure or good faith efforts to comply was
unwarranted where the violator's attempts to come into compliance were
dilatory and evidenced a lack of diligence); American Paging, Inc.,
Memorandum Opinion and Order, 12 FCC Rcd 10417, 10420 (WTB, Enf. and
Consumer Info. Div., 1997) (finding that a downward adjustment for
voluntary disclosure was unwarranted where the violator did not reveal its
violation until approximately a month after having various conversations
with Commission staff regarding an STA and that a downward adjustment for
good faith attempts to comply was unwarranted where the violator continued
to operate the station without authorization after its STA request was
denied).
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 07-1433
3
Federal Communications Commission DA 07-1433