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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-02-PA-280
Statcom Communications Corporation ) NAL/Acct. No. 200332400007
Staten Island, New York ) FRN: 0005-1410-72
)
)
MEMORANDUM OPINION AND ORDER
Adopted: January 24, 2007 Released: January 26, 2007
By the Assistant Bureau Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we dismiss the
Petition for Reconsideration filed by Statcom Communications
Corporation ("Statcom"). Statcom seeks reconsideration of the
Forfeiture Order in which the Enforcement Bureau ("Bureau") found it
liable for a monetary forfeiture in the amount of twelve thousand
dollars ($12,000) for willful and repeated violation of Section
1.903(a) of the Commission's Rules ("Rules"). The noted violation
involves Statcom's operation of two trunked radio systems at an
unauthorized location and operation on an unauthorized frequency,
462.075 MHz.
II. BACKGROUND
2. On July 30 and 31, 2002, responding to a complaint of operation at an
unauthorized location in Staten Island, New York, agents from the
Commission's Philadelphia, Pennsylvania Office ("Philadelphia Office")
and its New York, New York Field Office inspected a single trunked
radio system and observed unauthorized operation on the frequencies
477.8125 MHz, 462.450 MHz, 461.450 MHz, 478.0875 MHz, 472.5125 MHz,
461.825 MHz, 462.025 MHz, 461.775 MHz, 461.475 MHz and 462.075 MHz
("the frequencies") at 700 Victory Boulevard, Staten Island, New York
("Parkview House site"). The agents determined that the radio system
was operated by Statcom.
3. The agents' search of Commission records indicated Statcom had been
issued authorizations for operation of two trunked radio systems on
Staten Island, New York at 10 Highpoint Road, ("Todt Hill site") and
631 Howard Avenue, ("Wagner College site"), but it had not been issued
an authorization for operation at the Parkview House site. A search of
Commission records also revealed that Statcom had no authority to
operate on 462.075 MHz at any location.
4. On August 5, 2002, the Philadelphia Office issued a Notice of
Violation ("NOV") to Statcom for violating Section 1.903(a) of the
Rules by operating two trunked systems at the Parkview House site, an
unauthorized location, and operating on frequency 462.075 MHz, an
unauthorized frequency. Statcom filed a timely response to the NOV,
and supplemented its response with further material pertaining to its
use of 462.075 MHz from the authorized licensee. In response to the
NOV, Statcom explained that after it lost its location on the World
Trade Center when the building was destroyed, it had modified its
license several times in an effort to find adequate coverage for its
customers, but that in the process of solving interference problems at
the Victory Blvd. location, it overlooked modifying its license for
that site.
5. On January 27, 2003, the Philadelphia Office issued a Notice of
Apparent Liability for $12,000 to Statcom for operating a radio
station without Commission authorization for the location and for
operation on an unauthorized frequency in apparent willful and
repeated violation of Section 1.903(a) of the Rules. Statcom filed a
timely response. In its response, Statcom requested that the NAL be
cancelled because the apparent violations were inadvertent and not
willful in nature, and would not have occurred in any event but for
the events of September 11, 2001 ("9/11"), which forced Statcom from
its transmission location on the World Trade Center. Statcom states it
believed in good faith that the contractor it employed to address
Commission licensing for a new location had acquired Special Temporary
Authority. Statcom further argued that it lost significant investment
that was not entirely reimbursed through recovery grants, and that its
revenues were greatly reduced and were insufficient to sustain the
loss of an additional $12,000.
6. On January 26, 2005, the Bureau issued a Forfeiture Order finding
Statcom liable for a monetary forfeiture in the amount of $12,000 for
willful and repeated violation of Section 1.903(a) of the Rules. In so
finding, the Bureau stated that "Statcom's operation on the various
frequencies from an unauthorized location more than a year after 9/11
does not mitigate its violation...." The Bureau also found that
Statcom's request for cancellation of the forfeiture due to financial
distress was not accompanied by any documentation for the years 1999
through 2001, as is required for a request of reduction based on
inability to pay. On March 10, 2005, Statcom filed a Petition for
Reconsideration, a Request for Waiver of the 30-day time period in
which to file a petition for reconsideration, and information in
support of its request for reconsideration based upon its inability to
pay. In its petition for waiver, Statcom states that the delay in
filing its petition for reconsideration resulted from Statcom's
inability to retrieve its Federal income tax records from storage in
sufficient time to meet the 30-day petition for reconsideration
period.
III. discussion
7. Section 405 of the Communications Act of 1934, as amended ("Act"),
requires that petitions for reconsideration of a Commission action or
an action by delegated authority must be filed no later than 30 days
after the action that is the subject of the appeal. Section 1.106(f)
of the Rules, which requires petitions for reconsideration to be filed
within 30 days of the date of the public notice of the final order,
reflects that statutory mandate. Stacom filed its appeal of the
Forfeiture Order forty-three days after January 27, 2005, the first
full day following public notice of the Forfeiture Order. The 30^th
day after the first full day following public notice of the Forfeiture
Order was February 25, 2005; under the terms of Section 405 of the Act
and Section 1.106(f) of the Rules, Statcom had until close of business
that day to file an appeal.
8. "Because the time period for filing petitions for reconsideration is
prescribed by statute, the Commission may not, with one narrow
exception, waive or extend the filing period." The United States Court
of Appeals for the D.C. Circuit created a single, narrow exception to
the statutory filing period, and permits the Commission to waive or
extend the filing period where the late filing is due to the
Commission's failure to give a party timely notice of the action for
which reconsideration is sought. The very limited conditions under
which a waiver or extension of the statutory time limitation may be
granted are not present in this case as Statcom's stated reason for
the late filing of its petition (delay in filing its petition for
reconsideration resulted from Statcom's inability to timely retrieve
its Federal income tax records from storage) does not fall within this
narrow exception. Accordingly, pursuant to the Act and relevant case
law, the Commission had no jurisdiction to consider Statcom's petition
for reconsideration after February 25, 2005, and we must therefore
deny Statcom's waiver request and dismiss its petition for
reconsideration.
IV. ordering clauses
9. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Act, and Section 1.106(f) of the Rules, the petition for waiver filed
by Statcom Communications Corporation IS DENIED, and the petition for
reconsideration filed by Statcom Communications Corporation IS
DISMISSED.
10. Payment of the forfeiture assessed by the Order shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act. 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. 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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Statcom Communications Corporation, 1324 Forest Avenue,
Staten Island, NY 10302, and to their counsel, Frederick J. Day, Esq.,
5673 Columbia Pike, Suite 100, Falls Church, VA 22041.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Bureau Chief, Enforcement Bureau
Statcom Communications Corp., 20 FCC Rcd 1550 (Enf. Bur. 2005)
("Forfeiture Order").
47 C.F.R. S 1.903(a).
Statcom was authorized to operate stations WIL718 (477.8125 MHz,) WPPH856
(462.450 MHz), KNEW768 (461.450 MHz), WIL766 (478.0875 MHz and 472.5125
MHz), and WNIH640 (461.825 MHz) at the Todt Hill site.
Statcom was authorized to operate station WPUD412 on 462.025 MHz, 461.775
MHz and 461.475 MHz at the Wagner College site.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332400007
(Enf. Bur., Philadelphia Office, released January 27, 2003).
47 U.S.C. S 405(a).
Documents are considered to be filed on the date of receipt at the
location designated by the Commission. 47 C.F.R. S 1.7.
47 C.F.R. S 1.106(f).
Section 1.4(b) of the Rules specifies that the first full day after the
date of public notice counts as day 1 for the purpose of calculating the
filing deadline. In this case, calculating the 30-day filing deadline from
a public notice date of January 26, 2005, begins with January 27, 2005 as
the first of the permitted 30 days.
Stephen E. Powell, 11 FCC Rcd 11925, 11926 (1996) (citing to Reuters, Ltd.
v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986)).
Gardner v. FCC, 530 F.2d 1086, 1090-91 (D.C. Cir. 1976).
See, e.g., In the Matter of 62 Applications for Authority To Construct and
Operate Multipoint Distribution Service Stations at 24 Transmitter Sites,
10 FCC Rcd 11,178 (1995); Jesse C. Ross and Ernestine A. Ross, 21 FCC Rcd
7913 (Enf. Bur.2006).
47 C.F.R. S 1.106(f).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-188
3
Federal Communications Commission DA 07-188