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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-06-SE-324
)
Cooperative Light & Power Association NAL/Acct. No. 200732100024
)
Two Harbors, Minnesota FRN: 0002653921
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 3, 2007 Released: April 5, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find
Cooperative Light & Power Association ("CLP"), former licensee of
Private Land Mobile Radio Service ("PLMRS") stations WYU920, WYU921,
WFK224 and KA40187, Two Harbors, Minnesota, apparently liable for a
forfeiture in the amount of twenty thousand, eight hundred dollars
($20,800) for operating its PLMRS stations without Commission
authority and for failing to file timely renewal applications for the
stations. CLP acted in apparent willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended ("Act"), and
Sections 1.903 and 1.949(a) of the Commission's Rules ("Rules").
II. background
2. CLP's licenses for its PLMRS stations, WYU920, WYU921, WFK224 and
KA40187, expired on July 17, 2004. On June 26, 2006, CLP filed a
request for Special Temporary Authority ("STA") to continue operating.
The Wireless Telecommunications Bureau granted CLP STA to continue
operating under call sign WQFG667 on July 11, 2006.
3. Because it appeared that CLP may have operated its PLMRS stations
after the expiration of its licenses, the Wireless Telecommunications
Bureau referred this case to the Enforcement Bureau for investigation
and possible enforcement action. On October 16, 2006, the Enforcement
Bureau's Spectrum Enforcement Division issued a letter of inquiry
("LOI") to CLP.
4. In its November 20, 2006 response to the LOI, CLP states that it first
became aware that its licenses had expired on June 21 or 22, 2006. CLP
acknowledges that on April 30 and May 3, 2004, its operations manager
received notices by mail indicating that its licenses had to be
renewed by July 17, 2004. CLP states that its former office manager
indicated that CLP's power supplier had filed its renewals in the past
and that it would file these renewal applications. CLP concedes that
it continued to operate the stations without authorization from July
17, 2004 through June 26, 2006. CLP also states that, after realizing
that the licenses had expired, it immediately took measures to reapply
for licensing "in order to mitigate this inadvertent usage." The
Wireless Telecommunications Bureau granted CLP's application for a new
license under call sign WQFX519 on October 30, 2006.
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, CLP was required to maintain its
authorizations in order to operate its PLMRS stations. CLP concedes
that it operated the PLMRS stations without Commission authority from
July 17, 2004 to June 26, 2006. By operating its PLMRS stations for
approximately two years without authorization, CLP apparently violated
Section 301 of the Act and Section 1.903(a) of the Rules. CLP also
acted in apparent violation of Section 1.949(a) of the Rules by
failing to file timely renewal applications for the stations.
7. 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 the CLP's violations of Section 301 of the Act
and Sections 1.903(a) and 1.949(a) of the Rules were willful and
repeated.
8. 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 forfeiture of $20,800.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of ten
thousand dollars ($10,000) for operation of a station without
Commission authorization and three thousand dollars ($3,000) for
failure to file required forms or information. 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.
10. We propose a forfeiture in the amount of $5,000 for CLP's unauthorized
operation of each of its four stations after July 17, 2004, for a
total proposed forfeiture of $20,000. In proposing a total forfeiture
amount of $20,000, we recognize that the Commission considers a
licensee who operates a station with an expired authorization in
better stead than a pirate broadcaster who lacks prior authority, and
thus downwardly adjust the $10,000 base forfeiture amount, per
station, accordingly. Consistent with precedent, we also propose a
forfeiture in the amount of $1,500 for each station for CLP's failure
to file renewal applications for its four stations within the time
period specified in Section 1.949(a) of the Rules. Thus, we propose
an aggregate forfeiture of $26,000 ($20,000 for unauthorized
operations and $6,000 for failure to file timely renewal
applications). The forfeitures relate to CLP's apparent violations
that occurred within the past year, but take into account that they
were continuous in nature over a period of almost two years from July
17, 2004 through June 26, 2006.
11. CLP claims that it believed that its renewal applications were to be
submitted in a timely manner through its power supplier. As a
Commission licensee, CLP 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 authorizations
for its PLMRS stations. Accordingly, no downward adjustment of the
proposed forfeiture on this basis is warranted. We find, however, that
a downward adjustment of the proposed forfeiture from $26,000 to
$20,800 is warranted because CLP 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
12. 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, Cooperative Light &
Power IS hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of twenty thousand, eight hundred dollars ($20,800) for the
willful and repeated violation of Section 301 of the Act and Sections
1.903(a) and 1.949(a) of the Rules.
13. 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, Cooperative Light & Power SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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 of the
NAL amount 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.
15. 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.
16. 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.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt
Requested to Cooperative Light & Power at 1554 Highway 2, Box 69, Two
Harbors, MN 55616-0069.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. S 1.903 and 1.949(a).
See STA File No. 0002664459 (granted July 11, 2006). The STA authorized
CLP to operate on all of the frequencies previously authorized under call
signs WYU920, WYU921, WFK224 and KA40187 under a single authorization,
call sign WQFG667. 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.
Letter from Ricardo M. Durham, Senior Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Steve
Wattnem, Cooperative Light & Power (October 16, 2006).
Letter from Tom Dahlstrom, Operations Manager to Peter Waltonen, Esq.,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (November 20, 2006) ("LOI Response").
Id. at 1.
Id.
Id.
Id. at 2.
Id. at 1.
See File No. 0002779235.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
See supra n. 9.
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) recon. denied, 7 FCC Rcd 3454 (1992); see also WCS
Communications, Inc., Notice of Apparent Liability for Forfeiture, 13 FCC
Rcd 6691 (WTB, Enf. and Consumer 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 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, 15 FCC Rcd 303 (1999).
47 CF.R.S 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) (proposing forfeitures
of $5,000 and $1,500 against a broadcaster who 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); see Lazer Broadcasting Corporation, Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur., Spectrum Enf. Div.,
2006) ("Lazer Broadcasting"); Criswell College, Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf.
Div., 2006) ("Criswell"); National Weather Networks, Inc., Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 3922, 3925 (Enf. Bur.,
Spectrum Enf. Div., 2006) ("NWN"); Journal Broadcast Corporation, Notice
of Apparent Liability for Forfeiture, 20 FCC Rcd 18211, 18213 (Enf. Bur.,
Spectrum Enf. Div., 2005) ("Journal Broadcast"); Shared Data Networks,
LLC, Notice of Apparent Liability for Forfeiture, 20 FCC Rcd 18184,
18186-18187 (Enf. Bur., Spectrum Enf. Div., 2005) ("SDN").
See Discussion Radio, 18 FCC Rcd at 7438 (proposing a $1,500 forfeiture
for failure to timely file a renewal application for a broadcast station);
see also Lazer Broadcasting, 21 FCC Rcd at 8712; 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.
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 forfeiture
amount for violations that occurred within the one-year statutory period.
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 (2006); 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 7437; see also Gilmore Broadcasting
Corporation, Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6284,
6286-87 (Enf. Bur., Spectrum Enf. Div., 2006) ("Gilmore"); 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 07-1602
2
Federal Communications Commission DA 07-1602