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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-288
Doss Aviation Inc. ) NAL/Acct. No. 200732100030
Corpus Christi, Texas ) FRN # 0015068026
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 11, 2007 Released: May 15, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Doss
Aviation Inc. ("Doss"), former licensee of Private Land Mobile Radio
Service ("PLMRS") station WPPZ915, in Corpus Christi, Texas,
apparently liable for a forfeiture in the amount of five thousand, two
hundred dollars ($5,200) for 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"). The noted apparent violations involve Doss' operation of a
PLMRS station without Commission authority and its failure to file a
timely renewal application for the station.
II. background
2. Doss was granted a PLMRS station license under call sign WPPZ915 on
April 11, 2000, with an expiration date of April 11, 2005. Doss failed
to file for renewal of the station's license and the license expired
on its own terms on April 11, 2005. On May 18, 2006, Doss filed a
request for Special Temporary Authority ("STA") to continue operating
its PLMRS station. The Wireless Telecommunications Bureau granted Doss
STA to continue operating the station under call sign WQEY747 on May
19, 2006. On June 2, 2006, Doss filed an application for a new PLMRS
station license. The Wireless Telecommunications Bureau granted Doss a
new license under call sign WQFA992 on June 6, 2006.
3. Because it appeared that Doss may have operated the PLMRS station
after the expiration of its license under call sign WPPZ915, 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 Doss to investigate
whether it operated without authority.
1. In its October 13, 2006 response to the LOI, Doss stated that it first
became aware that its license under call sign WPPZ915 had expired on
or about May 17, 2006 when it received a letter from a frequency
coordinator stating that the license for call sign WPPZ915 had been
terminated by the FCC. Doss stated that it had not received any
correspondence from the FCC at its current address and that mail from
the FCC should have been forwarded from its old address to its current
address. Doss also admitted that it continued to operate the station
beyond the license expiration date without Commission authorization.
Specifically, Doss indicated that between the period of April 11, 2005
and "May 9, 2006," it continuously operated station WPPZ915 "without
any malicious intent." Doss further explained that once it discovered
the expiration of its license, it "immediately applied for a new
license to reinstate this call sign."
III. discussion
4. 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.
5. As a Commission licensee, Doss was required to maintain its
authorization in order to operate its PLMRS station. Doss admitted
that it operated the PLMRS station without Commission authority from
the station's license expiration date of April 11, 2005, until "May 9,
2006." By operating its PLMRS station for approximately 13 months
without an instrument of authorization, Doss apparently violated
Section 301 of the Act and Section 1.903(a) of the Rules. Doss also
acted in apparent violation of Section 1.949(a) of the Rules by
failing to file a timely renewal application for the station.
2. 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 Doss's violations of Section 301 of the Act
and Sections 1.903(a) and 1.949(a) of the Rules were willful and
repeated.
3. 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 $5,200.
4. 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 has 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 Doss's separate violations.
5. Consistent with precedent, we propose a $1,500 forfeiture for Doss'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 Doss's continued
operation of its PLMRS station after the expiration of its license on
April 11, 2005. In proposing a $5,000 forfeiture for Doss'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.
6. As a Commission licensee, Doss 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. Doss' assertions that it never received any
correspondence from the FCC because of an address change and that it
was unaware that mail sent to its original address would not be
forwarded to its new address do not mitigate its violations. We do
find, however, that a downward adjustment of the proposed aggregate
forfeiture from $6,500 to $5,200 is warranted because Doss 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
6. 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, Doss 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.
7. 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, Doss SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. 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.
9. 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.
10. 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.
11. 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 Frank G. Hunter, President/CEO, Doss
Aviation Inc., P.O. Box 18519, Corpus Christi, Texas 78418.
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 is filed." 47 C.F.R. S 1.955(a)(1).
See STA File No. 0002617645 (granted May 19, 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. 0002638744 (granted June 6, 2006).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Frank Hunter,
President, Doss Aviation Inc. (October 6, 2006).
See Letter from Frank G. Hunter, President/CEO, Doss Aviation Inc. to
Celia Lewis, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (October 13, 2006).
Id. at 1.
Id.
Id. We believe Doss means May 19, 2006, which was the date its STA was
granted.
Id.
Id.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
See Shared Data Networks, LLC, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18184, 18187-18188 (Enf, Bur., Spectrum Enf. Div.,
2005) ("SDN") (holding that a licensee "is charged with the responsibility
for knowing and complying with the terms of its authorizations...");
Sierra Pacific Power Company, Order, 16 FCC Rcd 188, 191 (WTB PSPWD 2001)
(holding that "each licensee bears the exclusive responsibility of filing
a timely renewal application" ); Alameda-Contra Costa Transit District,
Order, 15 FCC Rcd 24547, 24551 (WTB PSPWD 2000) (holding that "each
licensee is responsible for knowing the expiration date of its licenses
and submitting a renewal of license application in a timely manner").
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, 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; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (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) ("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).
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 Imperial Sugar Company, Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 4987 (Enf. Bur., Spectrum Enf. Div., 2007); Hare
Planting Co., Inc., Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd 13517 (Enf. Bur., Spectrum Enf. Div., 2006); Gilmore Broadcasting
Corp., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6284,
6286-87 (Enf. Bur., Spectrum Enf. Div., 2006) ("Gilmore"); 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"); SDN, 20 FCC Rcd at 18187.
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 Doss'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), recon. denied
11 FCC Rcd 193 (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 Doss'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 Anderson Communications, Memorandum Opinion and Order, 16 FCC Rcd
15020-21 (2001); ACC Network Corp., Order, 16 FCC Rcd 22446, 22448 (WTB
PSPWD 2001); WSYX Licensee, Inc., Order, 15 FCC Rcd 19084, 19085-86 (WTB
PSPWD 2000).
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 C.F.R. SS 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2056
2
Federal Communications Commission DA 07-2056