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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-327
Ted Sakaida & Sons, Inc. ) NAL/Acct. No. 200732100034
Van Nuys, California ) FRN # 0001519164
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 29, 2007 Released: May 31, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Ted
Sakaida & Sons, Inc. d/b/a Ted Sakaida & Sons Trucking ("Sakaida"),
former licensee of Private Land Mobile Radio Service ("PLMRS") station
WIM375, Van Nuys, California, apparently liable for a forfeiture in
the amount of five thousand, two hundred dollars ($5,200) for
operating its PLMRS station without Commission authority and for
failing to file a timely renewal application for the station. Sakaida
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
1. On June 19, 2006, Sakaida filed a request for Special Temporary
Authority ("STA") to continue operating its PLMRS station WIM375
because the station license had expired on June 26, 2005. The Wireless
Telecommunications Bureau ("WTB") granted Sakaida STA to continue
operating the station under call sign WQFD608 on June 21, 2006. On
November 28, 2006, Sakaida filed for renewal of the STA for station
WQFD608, which WTB granted on November 29, 2006, giving Sakaida
authority to operate through May 28, 2007. Also on November 28, 2006,
Sakaida filed an application for renewal of the license for station
WIM375, along with a waiver request to permit it to file the
application late.
2. Because it appeared that Sakaida may have operated the PLMRS station
after the expiration of its license under call sign WIM375, the WTB
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 Sakaida seeking information regarding its failure to renew
the station license, and its operation of the station beyond the
license expiration date.
2. In its December 4, 2006 response to the LOI, Sakaida states that
between March 27 and May 9, 2000, it submitted an application to renew
the license for station WIM375. The license was renewed on May 9, 2000
with an expiration date of June 26, 2005. Sakaida states that because
it did not receive a copy of the new license, it was not aware that
the Commission had taken action on the renewal application, and thus,
was not aware of the new expiration date. Sakaida contends that until
it was advised by the Commission that action had been taken on the
renewal application, it was reasonable for it to assume that it
continued to have operating authority pursuant to Section 9(b) of the
Administrative Procedure Act ("APA"), 5 U.S.C S 558(c). Sakaida
further surmises that, although the Universal Licensing System
database indicates that a renewal reminder was sent on or about April
4, 2005, it did not receive the renewal notice or the new license
because the documents were sent to "7412, Van Nuys, CA 91409" rather
than to Sakaida's correct address which is "P.O. Box 7412, Van Nuys,
CA 91409." Sakaida admits that it continued to operate the station
after June 26, 2005, but states that it did so because it was not
aware that its license for station WIM375 had expired. Finally,
Sakaida asserts that upon learning of the expiration of the license it
took immediate steps to obtain Commission authority to operate by
filing a request for STA.
III. discussion
3. 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.
4. As a Commission licensee, Sakaida was required to maintain its
authorization in order to operate its PLMRS station. Sakaida admitted
that it operated the PLMRS station without Commission authority from
the station's license expiration date of June 26, 2005 until June 21,
2006, when it was granted STA to operate the station under call sign
WQFD608. By operating its PLMRS station for approximately one year
without an instrument of authorization, Sakaida apparently violated
Section 301 of the Act and Section 1.903(a) of the Rules. Sakaida also
acted in apparent violation of Section 1.949(a) of the Rules by
failing to file a timely renewal application for the station.
3. 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 Sakaida's violations of Section 301 of the
Act and Sections 1.903(a) and 1.949(a) of the Rules were willful and
repeated.
4. 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 $5,200.
5. 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. The Commission has recently held
that 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 Sakaida's separate violations.
6. We propose a forfeiture of $5,000 for Sakaida's continued operation of
station WIM375 beyond June 26, 2005. In proposing $5,000 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.
The $5,000 forfeiture relates to Sakaida's apparent violations that
occurred within the past year, but takes into account that those
apparent violations were continuous in nature. Additionally,
consistent with precedent, we propose a $1,500 forfeiture for
Sakaida's failure to file a renewal application for its station within
the time period specified in Section 1.949(a) of the Rules. Thus, we
propose an aggregate forfeiture of $6,500 ($5,000 for unauthorized
operations and $1,500 for failure to timely file a renewal
application).
7. Sakaida argues that it was reasonable for it to assume that it
continued to have operating authority pursuant to Section 558(c) of
the APA until it was advised by the Commission that it had acted on
the renewal application. We do not agree. Section 558(c) of the APA
provides that "[w]hen the licensee has made timely and sufficient
application for a renewal or a new license in accordance with agency
rules, a license with reference to an activity of a continuing nature
does not expire until the application has been finally determined by
the agency." In this case, Sakaida's application was finally
determined by the Commission when the license for station WIM375 was
renewed on May 9, 2000 with an expiration date of June 26, 2005. Even
absent the receipt of actual knowledge of Commission action on the
application, we believe it to be unreasonable for Sakaida to assume
that the statute would convey authority for operation beyond the
actual license term for which Sakaida applied via its renewal
application. It is not the Commission's obligation to ensure that the
licensee is informed; rather it is the licensee's responsibility to
ensure that it is informed. Sakaida has provided no evidence that it
exercised due diligence in prosecuting the application by checking on
its status at any time after its filing. As a Commission licensee,
Sakaida is charged with the responsibility of knowing and complying
with the terms of its authorizations (including STAs), the Act and the
Rules. Inherent in this responsibility is the obligation to follow-up
on an application that was filed in May, 2000, for which no response
has been received, at some point before the license expired five years
later on June 26, 2005.
8. As for Sakaida's arguments regarding the possibility that the
Commission sent pertinent documents to an incorrect address, we note
that the WTB has already addressed these arguments in its response to
Sakaida's Petition for Reconsideration and Request for Reinstatement
of Authorization and found them to be without merit. We see no reason
to revisit the issues here. We do find, however, that a downward
adjustment of the proposed forfeiture from $6,500 to $5,200 is
warranted because Sakaida made voluntary disclosures to Commission
staff and undertook corrective measures after learning of its
violations prior to any Commission inquiry or initiation of
enforcement action.
IV. ORDERING CLAUSES
5. 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, Ted Sakaida & Sons
Trucking 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.
6. 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, Ted Sakaida & Sons Trucking SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
7. 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.
8. 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.
9. 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.
9. 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 Ted Sakaida & Sons Trucking, P.O. Box
7412, Van Nuys, CA 91409 and its counsel, Robert J. Keller, Esq., Law
Office of Robert J. Keller, P.C., P.O. Box 33428, Washington, DC
20033.
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).
On June 20, 2006, Sakaida filed a Petition for Reconsideration and
Request for Reinstatement of Authorization ("Petition") seeking to have
the expired authorization for Station WIM375 reinstated. On March 9, 2007,
the WTB dismissed and denied Sakaida's Petition (see Letter from Lloyd W.
Coward, Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau to Robert J. Keller, Esq., Counsel for Ted Sakaida & Sons Trucking
(March 9, 2007) ("WTB Letter")).
STA File No. 0002655701 (granted June 21, 2006). The Wireless
Telecommunications Bureau granted the STA on a secondary, non interference
basis because the frequency formerly assigned to Sakaida had been
reassigned to another licensee after Sakaida's license expired. In
addition, the STA was granted without prejudice to any future FCC
enforcement action against the company in connection with unauthorized
operation of its radio facilities.
File No. 0002830194 (granted November 29, 2006).
File No. 0002830185.
See Letter from Ricardo M. Durham, Senior Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission to Ted Sakaida & Sons, Inc. d/b/a Ted Sakaida & Sons Trucking
(November 2, 2006).
See Letter from Robert J. Keller, Counsel for Ted Sakaida & Sons, Inc.
d/b/a Ted Sakaida & Sons Trucking to Ricardo M. Durham, Senior Deputy
Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (December 4, 2006) ("LOI Response").
Id. at 1.
Id. at 1-2.
Id. at 1, note 2.
Id . at 2.
Id . at 2.
47 C.F.R. S 1.949(a).
47 C.F.R. S 1.955(a)(1).
LOI Response at 2.
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). See also
Sections 312(f)(1) and (2) of the Act, 47 U.S.C. S 312(f)(1) and (2),
which apply to violations for which forfeitures are assessed under Section
503(b) of the Act ("[t]he term `willful,' ... means the conscious and
deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act..." and a violation is "repeated" if it
continues for more than one day).
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; see also 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) (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) ("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); Shared Data Networks, LLC, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18184, 18186-18187 (Enf. Bur., Spectrum Enf. Div.,
2005) ("Shared Data") (proposing an $18,000 forfeiture - $6,000 per earth
station - for unauthorized operation over a period of 5 years); Journal
Broadcast Corporation, Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd 18211, 18213 (Enf. Bur., Spectrum Enf. Div., 2005) ("Journal
Broadcast") (proposing a $5,000 forfeiture for unauthorized operation for
1 year).
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; 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 7438 (proposing a $1,500 forfeiture
for failure to timely file a renewal application for a broadcast station);
Shared Data, 20 FCC Rcd at 18187 (proposing an aggregate forfeiture amount
of $4,500 for failure to timely file renewal applications for 3 earth
stations); Journal Broadcast, 20 FCC Rcd at 18213) (proposing a $1,500
forfeiture for failure to timely file a renewal application for an earth
station); Self Communications, Inc., Order and Notice of Apparent
Liability, 15 FCC Rcd 18661, 18664-65 (WTB, Public Safety and Private
Wireless Div., 2000) (proposing a $1,500 forfeiture for failure to timely
file a renewal application for a 218-219 MHz service); Vincent
Communications, Inc., Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 8432 (WTB, Enf. and Consumer Info. Div., 1999) (proposing an aggregate
$4,500 forfeiture for failure to timely file renewal applications for 3
paging stations), forfeiture ordered, 15 FCC Rcd 18263 (Enf. Bur. 2000).
Lockheed Martin Corporation, Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 4116, 4118 (Enf. Bur. 2007).
See WTB Letter at 5 (finding Sakaida's contention of incorrect mailing to
be unsupported based on the evidence and noting that each licensee is
fully responsible for knowing the terms and duration of its licenses and
for filing a timely renewal application), citing Biennial Regulatory
Review - Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, and
101 of the Commission's Rules to Facilitate Development and Use of the
Universal Licensing System in the Wireless Telecommunications Service,
Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 11476, 11486
(1999); see also, Disneyland Resort, Order, 21 FCC Rcd 536, 537-38 (WTB
PSPWD 2006) (holding that "each licensee is fully responsible for knowing
the terms and duration of its license and for filing a timely renewal
application"); 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 Private Land Mobile Stations KBY746, WFS916, and
KM8643, 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"); World Learning, Order, 15 FCC Rcd 23871, 23872 (WTB PSPWD 2000)
(holding that licensee "is solely responsible for filing a timely renewal
application"); First National Bank of Berryville, Order, 15 FCC Rcd 19693,
19696 (WTB PSPWD 2000) (holding that "it is the responsibility of each
licensee to renew its application prior to the expiration date of the
license"); Montana Power Company, Order, 14 FCC Rcd 21114, 21115 (WTB
PSPWD 1999) (holding that "it is the responsibility of each licensee to
apply to renew its license prior to the license's expiration date").
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur., 2004).
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 07-2235
4
Federal Communications Commission DA 07-2235