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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-340
Kimberly Clark Corporation ) NAL/Acct. No. 200732100031
Dallas, Texas ) FRN # 0002720746
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 16, 2007 Released: May 18, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Kimberly
Clark Corporation ("Kimberly Clark"), former licensee of Private Land
Mobile Radio Service ("PLMRS") station WPKW900, apparently liable for
a forfeiture in the amount of fifteen thousand dollars ($15,000) for
operating its PLMRS station without Commission authority and for
failing to file a timely renewal application for the station. Kimberly
Clark 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 November 13, 2001, an application was filed with the Commission's
Wireless Telecommunications Bureau ("Wireless Bureau") to assign the
license for PLMRS station WPKW900 from HK Systems to Kimberly Clark.
The license for WPKW900 had an expiration date of August 22, 2002. On
July 19, 2006, Kimberly Clark filed with the Wireless Bureau a request
for Special Temporary Authority ("STA") to operate WPKW900 until
December 31, 2006, at which time the company would cease operations
using the frequencies associated with the call sign. On July 28, 2006,
the Wireless Bureau granted Kimberly Clark its requested STA to
operate the station under call sign WQFJ386 until January 24, 2007.
3. Because it appeared that Kimberly Clark may have operated WPKW900
after the expiration of its license, the Wireless Bureau referred this
case to the Enforcement Bureau for
investigation and possible enforcement action. On November 2, 2006, the
Enforcement Bureau's Spectrum Enforcement Division issued a letter of
inquiry ("LOI") to Kimberly Clark.
4. On December 18, 2006, Kimberly Clark filed its response to the LOI
("LOI Response"), requesting "confidential treatment of this Response
in accordance with Section 0.459 of the Commission's Rules..." On
February 23, 2007, the Spectrum Enforcement Division denied the
request as overly broad and not compliant with Section 0.459 of the
Rules. Kimberly Clark did not file an application for review; thus,
the LOI Response material is considered and used in this Notice of
Apparent Liability for Forfeiture.
5. Kimberly Clark stated in its LOI Response that it became aware of the
expiration of its license to operate station WPKW900 in May 2006,
although a company employee was previously notified on August 7, 2004
of the license expiration. According to Kimberly Clark, "a
miscommunication" led the employee to believe that the frequencies
associated with WPKW900 "were not being utilized, thus making the
license unnecessary." Kimberly Clark further explained that in May
2006, the company took corrective measures regarding the expired
license, including working with counsel to disclose the matter to the
Commission and to file the STA request on July 19, 2006. Kimberly
Clark also admitted to operating WPKW900 "nearly continuously" without
Commission authorization between August 22, 2002, and July 28, 2006.
III. DISCUSSION
6. 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.
1. As a Commission licensee, Kimberly Clark was required to maintain its
authorization in order to operate its PLMRS station. Kimberly Clark
admitted that it operated station WPKW900 without Commission authority
from the station's license expiration date of August 22, 2002, until
the STA grant date of July 28, 2006. By operating its PLMRS station
for almost four years without authorization, Kimberly Clark apparently
violated Section 301 of the Act and Section 1.903(a) of the Rules.
Kimberly Clark 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 Kimberly Clark'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 total forfeiture of $15,000.
4. 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 authority and three thousand dollars ($3,000) for failure
to file required forms or information. As the Commission recently
held, a licensee's continued operations without authorization and its
failure to timely file a renewal application constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Kimberly Clark's separate violations.
5. We propose a $6,000 forfeiture for Kimberly Clark's continued
operation of its PLMRS station after the expiration of its license on
August 22, 2002. In proposing a $6,000 forfeiture 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 takes
into account that Kimberly Clark's unauthorized operations spanned
almost four years from the license's expiration date. In addition, we
propose a $1,500 forfeiture for Kimberly Clark's failure to file the
renewal application for its PLMRS station within the time period
specified in Section 1.949(a) of the Rules. Thus, we propose an
aggregate forfeiture of $7,500.
6. The $7,500 base forfeiture amount is subject to adjustment, however.
In this regard, we consider Kimberly Clark's size and ability to pay a
forfeiture. To ensure that forfeiture liability is a deterrent, and
not simply a cost of doing business, the Commission has determined
that large or highly profitable companies, such as Kimberly Clark,
could expect the assessment of higher forfeitures for violations.
Given Kimberly Clark's size and ability to pay a forfeiture, we
conclude that an upward adjustment of the base amount to $15,000 is
appropriate.
7. We find that Kimberly Clark'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 $15,000 forfeiture. Although Kimberly Clark's disclosures
and compliance efforts preceded any Commission investigation or
initiation of enforcement action, we find the company's actions were
dilatory as it took no immediate action to notify Commission staff and
come into compliance with our rules after learning of the violation.
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.
I. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Kimberly Clark IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) 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, Kimberly Clark 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.
12. 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 Terence N. Assink, Kimberly Clark
Corporation, Post Office Box 61900, Dallas, Texas 75261, and Michelle
W. Cohen, Esquire, Thompson Hine LLP, 1920 N Street, Northwest,
Washington, D.C. 20036.
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).
See FCC File No. 0000668073. The Commission consented to the license
assignment of WPKW900 from HK Systems to Kimberly Clark on December 12,
2001. Kimberly Clark used the frequencies associated with WPKW900 in the
operation of automated guided vehicles in Kimberly Clark's Paris, TX
facility.
Commission records indicate that an automatic renewal reminder letter was
sent to Kimberly Clark on August 22, 2002. No renewal application was
filed, and consequently, the license was cancelled on December 12, 2002.
See FCC File No. 0002687374 (granted July 28, 2006). The STA for WQFJ386
was granted on a secondary non-interference basis without prejudice to any
future FCC enforcement action against the company in connection with
unauthorized operation of its radio facilities.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Terence N.
Assink, Vice President, Management Information Systems, Kimberly Clark
Corporation (November 2, 2006).
See Letter from Michelle W. Cohen, Counsel to Kimberly Clark Corporation
to Karen Mercer, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (December 18, 2006).
Id. at 1.
See Kimberly Clark Corporation, Order, 22 FCC Rcd 3703, 3704 (Enf. Bur.,
Spectrum Enf. Div., February 23, 2007).
LOI Response at 1.
Id.
Id. at 2-3.
Id. at 2.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(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), recon. denied, 7 FCC Rcd 3454 (1992); see also Domtar
Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
13811, 13815 (Enf. Bur., Spectrum Enf. Div., 2006) ("Domtar"); National
Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 3922, 3925 (Enf. Bur., Spectrum Enf. Div., 2006) ("NWN") (willful
is any conscious or deliberate act and does not require intention to
violate the Act or Rules and repeated means more than once).
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, 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) (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").
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
(2006); Compass, Inc. D/B/A Compass Global, Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 15132, 15138 (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); NWN, 21
FCC Rcd at 3925.
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 Lazer Broadcasting Corporation, Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 8710, 8711 (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"); NWN, 21 FCC Rcd at 3925; 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, 18187 (Enf. Bur., Spectrum Enf. Div., 2005) ("SDN").
See Mitchell Electric Membership Cooperative, Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 5538, 5539 (Enf. Bur., Spectrum Enf. Div.,
March 29, 2007 (proposing a $6,000 forfeiture for operating a PLMRS
station for almost five years without Commission authority) ("Mitchell
Electric"). See also SDN, 20 FCC Rcd at 18187 (proposing an aggregate
forfeiture amount of $18,000 for operating three earth stations for almost
five years without Commission authority ($6,000 each)).
See Discussion Radio, 19 FCC Rcd at 7437; see also Hare Planting Co.,
Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13517, 13519
(Enf. Bur., Spectrum Enf. Div., 2006), forfeiture ordered, DA 07-1812
(Enf. Bur., Spectrum Enf. Div., April 25, 2007) ("Hare"); Twin Cities
Public Television, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 13428, 13430 (Enf. Bur., Spectrum Enf. Div., 2006) ("Twin
Cities"); Lazer Broadcasting, 21 FCC Rcd at 8711; Gilmore Broadcasting
Corp., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6284,
6286-6287 (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.
Kimberly Clark reported revenues of $16.7 billion in its annual report for
2006. See [1]www.kimberly-clark.com/investors/annual_reports.aspx/about
us/financial.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Mitchell Electric, 22 FCC Rcd at 5540 (finding that a downward
adjustment was unwarranted where the violator waited six months after
becoming aware of the violation to notify Commission staff and seek
authority to operate the station); Domtar, 21 FCC Rcd at 13813 (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.
Federal Communications Commission DA 07-2083
6
Federal Communications Commission DA 07-2083
References
Visible links
1. http://www.kimberly-clark.com/investors/annual_reports.aspx/about