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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-SE-326
RSDC of Michigan, LLC ) NAL/Acct. No. 200732100025
Holt, Michigan ) FRN # 0009600263
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 10, 2007 Released: April 12, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find RSDC of
Michigan, LLC ("RSDC"), former licensee of Private Land Mobile Radio
Service ("PLMRS") station WPMV711, in Holt, Michigan, apparently
liable for a forfeiture in the amount of nine thousand, two hundred
dollars ($9,200) for operating a PLMRS station without Commission
authority, failing to file a timely renewal application for the
station and failing to respond to directives of the Enforcement Bureau
("Bureau") to provide certain information and documents. RSDC 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. RSDC was granted a PLMRS station license under call sign WPMV711 on
January 29, 1999, with an expiration date of January 29, 2004. RSDC's
license to operate station WPMV711 expired on January 29, 2004,
because it failed to file a renewal application. On June 19, 2006-
more than two years after its authorization expired - RSDC filed a
request for Special Temporary Authorization ("STA") to operate the
station until action was taken on its application for a new license.
On June 20, 2006, the Wireless Telecommunications Bureau granted RSDC
an STA to continue operating the station under call sign WQFD442
without prejudice to any enforcement action for unauthorized
operations. On July 10, 2006, RSDC filed an application for a new
PLMRS station license, which the Wireless Telecommunications Bureau
granted on August 24, 2006 (call sign WQFN581).
3. Because it appeared that RSDC may have operated the PLMRS station
after the expiration of its license under call sign WPMV711, the
Wireless Telecommunications Bureau referred this case to the
Enforcement Bureau for investigation and possible enforcement action.
On October 19, 2006, the Bureau's Spectrum Enforcement Division
("Division") issued a letter of inquiry ("LOI") to RSDC directing that
it answer questions concerning the Division's investigation into
whether RSDC violated Section 1.949 of the Rules by failing to timely
file a renewal application for WPMV711, and whether it violated
Section 301 of the Act and Section 1.903 of the Rules by continuing to
operate the station beyond the expiration of its authorization term.
The LOI directed RSDC to submit a response within 30 business days.
The LOI also explained that failure to appropriately respond may
constitute a violation of the Communications Act and Rules. RSDC did
not respond within the applicable time period. On January 23, 2007,
after several attempts by Division staff to contact him, Paul Recher,
RSDC's Purchasing Coordinator, informed Division staff that he had
turned the matter over to RSDC's Controller, Joseph McDevitt. On
February 21, 2007, the Division issued a second LOI to RSDC seeking a
response to the Division's original LOI of October 19, 2006. RSDC did
not respond to the second LOI.
III. discussion
4. Section 301 of the Act and Section 1.903 of the Rules prohibit the use
or operation of any apparatus for the transmission of energy,
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 licensees to 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.
5. As a Commission licensee, RSDC is required to maintain a current
authorization to operate its station. RSDC apparently operated the
station without authorization for over two years -- from January 29,
2004 to June 20, 2006. By operating its station without authorization,
RSDC apparently willfully and repeatedly violated Section 301 of the
Act and Section 1.903 of the Rules. RSDC also acted in apparent
violation of Section 1.949(a) of the Rules by failing to file a timely
renewal application for the station.
6. Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch business
and to the ends of justice." Section 403 likewise grants the
Commission "full authority and power ... to institute an inquiry, on
its own motion ... relating to the enforcement of any of the
provisions of this Act." Pursuant to that authority, the Bureau twice
ordered RSDC to submit a timely written response to its LOIs and to
provide the information and documents requested. Twice RSDC failed to
respond as directed. It is well settled that a party cannot ignore the
directives in a Bureau letter of inquiry.
7. Section 503(b) of the Act, and Section 1.80 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 RSDC's violations of Section 301 of the Act
and Sections 1.903 and 1.949(a) were willful and repeated. It also
appears that RSDC willfully and repeatedly failed to respond to a
Bureau order.
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 an aggregate forfeiture in the amount of $9,200.
9. 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 operation without authorization constitute separate
violations of the Act and the rules and warrant the assessment of
separate forfeitures. Accordingly, we propose separate forfeiture
amounts for RSDC's separate violations.
10. Consistent with precedent, we propose a $1,500 forfeiture for RSDC'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 RSDC's continued
operation of its PLMRS station after the expiration of its license on
January 29, 2004. In proposing a $5,000 forfeiture for RSDC'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 ($1,500 for failure
to timely file a renewal application and $5,000 for unauthorized
operations).
11. Pursuant to the Forfeiture Policy Statement and Section 1.80(b) of the
Rules, the base forfeiture amount for failure to respond to a
Commission communication is $4,000. We find that RSDC's willful and
repeated failure to respond to a Bureau order warrants a proposed
forfeiture. Misconduct of this type exhibits a disregard for the
Commission's authority that cannot be tolerated, and, more
importantly, threatens to compromise the Commission's ability to
adequately investigate violations of its rules. Accordingly, applying
the Forfeiture Policy Statement and statutory factors to the instant
case, we conclude that RSDC is apparently liable for a forfeiture in
the amount of $4,000 for failing to respond to the Bureau's letters of
inquiry. Thus, we propose an aggregate forfeiture of $10,500 for
RSDC's apparent willful and repeated violations of Section 301 of the
Act and Sections 1.903 and 1.949(a) of the Rules and RSDC's apparent
willful and repeated failure to respond to a Bureau order.
12. As a Commission licensee, RSDC 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 $10,500 to $9,200 is
warranted because RSDC made voluntary disclosures to Commission staff
concerning its failure to file a timely license renewal application
and undertook corrective actions prior to any Commission inquiry or
initiation of enforcement action.
IV. ORDERING CLAUSES
13. 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, RSDC of Michigan, LLC
IS hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
amount of $9,200 for willful and repeated violation of Section 301 of
the Act and Sections 1.903 and 1.949(a) of the Rules and for willful
and repeated failure to respond to a Bureau order.
14. 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, RSDC of Michigan, LLC SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
1. 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.
2. 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.
15. 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.
16. 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 Mr. Joseph McDevitt, RSDC of Michigan, LLC, 1775 Holloway
Drive, Holt, Michigan 48842.
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 and 1.949(a).
File No. 0002654371.
File No. 0002678741.
Letter from Ricardo M. Durham, Senior Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to Paul
P. Recher, RSDC of Michigan, LLC (October 19, 2006). The U.S. Postal
Service certified mail return receipt shows that RSDC received this letter
on October 25, 2006.
E-mail from Paul Recher, RSDC of Michigan, to Katherine Power, Esquire,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (January 23, 2007).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Joseph McDevitt,
RSDC of Michigan, LLC (February 21, 2007). U.S. Postal Service records
show that RSDC received this letter on February 26, 2007.
47 C.F.R. S 1.955(a)(1).
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002) (licensee is responsible for compliance
with all Commission rules).
47 U.S.C. SS 4(i), 4(j) and 403.
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) (Commission assessed a $100,000 forfeiture against a carrier
for its willful refusal to supply a sworn declaration in response to a
Bureau letter of inquiry, stating: "[T]he order here was squarely within
the Commission's authority and, in any event, parties are required to
comply with Commission orders even if they believe them to be outside the
Commission's authority."); see also World Communications Satellite
Systems, Inc., Forfeiture Order, 19 FCC Rcd 2718 (Enf. Bur. 2004)
($10,000 forfeiture assessed for submitting a jurisdictional objection in
lieu of a response to a Bureau inquiry letter); In re Richard E.
LaPierre, Forfeiture Order, 15 FCC Rcd 23525 (Enf. Bur. 2000) ($4,000
forfeiture assessed for repeated failure to respond to written Commission
inquiries); General Growth Properties, Notice of Apparent Liability for
Forfeiture, DA 07-1548 (Enf. Bur., Spectrum Enf. Div., rel. April 2, 2007)
($9,200 total forfeiture proposed against a PLMRS licensee for failure to
respond to Commission inquiries, failure to renew its PLMRS station
license, and operation of its PLMRS station after expiration of the
license).
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 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 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) ("Forfeiture Policy Statement").
47 C.F.R. S 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) ("Discussion Radio")
(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).
Forfeiture Policy Statement, 12 FCC Rcd at 17114.
47 C.F.R. S 1.80(b).
See Shenzhen Ruidian Communication Co. Ltd., Forfeiture Order, 21 FCC Rcd
2177 (Enf. Bur., Spectrum Enf. Div., 2006) (assessing a $4,000 forfeiture
for willfully and repeatedly failing to respond to a directive of the
Bureau to provide certain information and documents).
See Discussion Radio, 19 FCC Rcd at 7437 (licensee duty to timely seek
renewal of its license to maintain operating authority); see also
Criswell College, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd at 3926; Journal
Broadcast, 20 FCC Rcd at 18214; Shared Data, 20 FCC Rcd at 18187.
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur. 2004) (forfeiture reduced for voluntarily disclosure
and initiating corrective action prior to Commission inspection); see also
Criswell College, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd at 3926; Journal
Broadcast, 20 FCC Rcd at 18214; Shared Data, 20 FCC Rcd at 18187.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1672
4
Federal Communications Commission DA 07-1672