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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                )                               
                                                                
                                )                               
     In the Matter of               File Number EB-06-SE-327    
                                )                               
     Ted Sakaida & Sons, Inc.       NAL/Acct. No. 200732100034  
                                )                               
     Van Nuys, California           FRN # 0001519164            
                                )                               
                                                                
                                )                               


                                forfeiture order

   Adopted: December 21, 2007   Released:   December 27, 2007

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of five thousand, two hundred dollars ($5,200) against 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, for willful and repeated violations of
       Section 301 of the Communications Act of 1934 ("Act") as amended, and
       Sections 1.903(a) and 1.949(a) of the Commission's Rules ("Rules").
       The noted violations involve Sakaida's operation of PLMRS station
       WIM375 without Commission authority and failure to file a timely
       renewal application for that station.

   II. background

    2. 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 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 on the specified expiration date.

    3. 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 an STA to continue
       operating the station under call sign WQFD608 on June 21, 2006.

    4. 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 ("Bureau") Spectrum Enforcement Division ("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. 

    5. On November 28, 2006, Sakaida filed for renewal of the STA for station
       WQFD608, which  the 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.

    6. In its December 4, 2006 response to the LOI, Sakaida stated that
       between March 27 and May 9, 2000, it submitted an application to renew
       the license for station WIM375. Though the license was renewed by the
       WTB on May 9, 2000 with an expiration date of June 26, 2005, Sakaida
       stated that it did not receive a copy of the new license. It therefore
       stated that 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 contended 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 surmised 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 admitted that it
       continued to operate the station after June 26, 2005, but stated that
       it did so because it was not aware that its license for station WIM375
       had expired. Finally, Sakaida asserted that upon learning of the
       expiration of the license it took immediate steps to obtain Commission
       authority to operate by filing a request for an STA.

    7. On May 31, 2007, the Chief, Spectrum Enforcement Division
       ("Division"), Enforcement Bureau ("Bureau") released a Notice of
       Apparent Liability for Forfeiture ("NAL") finding that Sakaida
       willfully and repeatedly operated PLMRS station WIM375 without
       Commission authority after its authorization expired on June 26, 2005,
       and failed to file a timely renewal application for the station by the
       date of expiration. The NAL proposed a forfeiture in the amount of six
       thousand, five hundred dollars ($6,500) based on Sakaida's apparent
       willful and repeated violations of Section 301 of the Act and Sections
       1.903(a) and 1.949(a) of the Rules. The NAL downwardly adjusted that
       amount to five thousand, two hundred dollars ($5,200) because Sakaida
       made voluntary disclosures to Commission staff and undertook
       corrective measures, i.e. filing an application for an STA and an
       application for renewal of the license for station WIM375, after
       learning of its violations but prior to any Commission inquiry or
       initiation of enforcement action.

    8. In a July 2, 2007 response to the NAL, Sakaida concedes that it did
       not file a timely application for renewal of the license for PLMRS
       station WIM375. However, it maintains that without notice of the need
       for it to renew its license it cannot be in violation of either
       Section 1.903(a) or 1.949(a) of the Rules because its actions were not
       "willful" under Section 301 of the Act. It also asserts that the
       Commission is barred from assessing a forfeiture for violation of
       Section 1.949(a) (failure to file a timely renewal application) on
       statute of limitations grounds.

   III. discussion

    9. The forfeiture amount proposed in this case was assessed in accordance
       with Section 503(b) of the Act, Section 1.80 of the Rules, and the
       Commission's Forfeiture Policy Statement. In assessing forfeitures,
       Section 503(b)(2)(E) of the Act requires that we take into account 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.

   10. We have considered Sakaida's Response in light of the above statutory
       factors, our rules, and the Forfeiture Policy Statement. We conclude
       that Sakaida willfully and repeatedly violated Section 301 of the Act
       and Sections 1.903(a) and 1.949(a) of the Rules. Further, we find no
       mitigating circumstances warranting a further reduction of the
       proposed forfeiture amount. In its response to the NAL, Sakaida
       contends that it was justified in assuming that its operating
       authority continued in force because it did not receive any
       notification that the Commission had set a "new expiration date" for
       its license. Absent this notification, according to Sakaida, there can
       be no willful violation of Section 1.903(a). We rejected this argument
       and Sakaida's interpretation of Section 558(c) of the APA in the NAL.
       It is not the Commission's responsibility to ensure a licensee is
       informed; it is the licensee's responsibility to keep itself informed.
       Licensees are, thus, presumed to have the required notice of the need
       to file a renewal. Sakaida provides no new information justifying its
       reliance on Section 558(c) of the APA that persuades us to alter the
       forfeiture proposed in the NAL.

   11. Additionally, the Commission has held that an unintended error neither
       nullifies nor mitigates violations of the Act or the Rules. In the
       context of a forfeiture action, "willful" does not require a finding
       that the rule violation was intentional or that the violator was aware
       that it was committing a rule violation. Rather, the term "willful"
       simply requires that the violator knew it was taking or failing to
       take the action in question, irrespective of any intent to violate the
       Commission's rules. Further, Section 503 of the Act requires that we
       find that a party acted either willfully or repeatedly. In the context
       of a forfeiture action, "repeated" means that an act was committed
       more than once or for more than one day, if continuous. Because
       Sakaida admits that it did not seek a timely renewal of its license
       for call sign WIM375 and its unauthorized operation, therefore, lasted
       more than one day, we find that Sakaida has repeatedly violated
       Section 301 of the Act and Sections 1.903(a) and 1.949(a) of the
       Rules. Further, as the Commission noted in Discussion Radio, licensees
       are responsible for seeking timely renewal regardless of whether they
       receive a renewal notification and a failure to do so is considered a
       willful violation. Thus, Sakaida has also willfully violated Section
       1.949(a) of the Rules.

   12. Sakaida also asserts that the Commission is barred by the one-year
       statute of limitations contained in Section 503(b)(6) of the Act from
       assessing a forfeiture for violation of Section 1.949(a) of the Rules,
       failure to file a timely renewal of its operating license. It
       maintains that its failure to submit a timely renewal was a one-day
       offense and not a continuing offense and that, since that one day was
       more than one year earlier than the date of issuance of the NAL, the
       Commission cannot assess a forfeiture for violation of Section
       1.949(a) of the Rules. We disagree with Sakaida's interpretation of
       the rule. As we stated in the NAL, Commission precedent is clear: A
       licensee's failure to file a timely renewal is a continuing violation
       that continues until the licensee again obtains Commission
       authorization to operate. Moreover, even though Discussion Radio,
       cited both in the NAL and in Sakaida's response, involved a broadcast
       licensee, the Commission's treatment of Discussion's failure to file a
       timely license renewal did not turn on the different statute of
       limitations for broadcast versus non-broadcast licensees. Instead, it
       was predicated on the Commission's decision to penalize Discussion
       Radio for "untimely filing and unauthorized operation . . . during the
       time between the expiration of the license and the untimely renewal
       filing."

   13. The Commission has articulated a similar policy for the wireless
       services of initiating "enforcement action against the licensee for
       untimely filing and unauthorized operation between the expiration of
       the license and the late renewal filing, including, if appropriate,
       the imposition of fines or forfeitures for these rule violations."
       Thus, the treatment of Sakaida's failure to file a timely renewal
       application as a continuing violation is consistent with the
       Commission's practice of accepting late filed renewal applications in
       all wireless services, including PLMRS service, and approving them
       nunc pro tunc when they are filed within 30 days of the due date, but
       subjecting renewal applications filed more than thirty days after the
       expiration date to a heightened level of scrutiny. In either case,
       where justified, the Commission grants the renewal without prejudice
       to its ability to assess the appropriate forfeitures for any
       underlying violations of its Rules. In Sakaida's case, when the WTB
       granted the STA to Sakaida on June 21, 2006, it noted that Sakaida's
       request raised the possibility of unauthorized operation and that the
       grant of the STA did not "preclude or prejudice any enforcement
       action" related to Sakaida's action underlying the request.

   14. Finally, despite its apparent view that "filing a [renewal]
       application" is "prohibited" by the rules, Sakaida filed a renewal
       application on November 28, 2006 for call sign WIM375, requesting a
       waiver of Section 1.949(a) of the Rules to do so.  Thus, Sakaida's own
       action undercuts its assertion that failing to timely file a renewal
       application is a one-day violation and reinforces the Commission's
       interpretation that failure to file a timely renewal is a continuing
       violation that continues until a renewal application is filed or, in
       this case, until an STA request is filed. Indeed, when the WTB granted
       Sakaida's STA on June 21, 2006, it granted Sakaida the use of the same
       frequency it previously had, albeit with a different call sign.
       Therefore, we affirm the decision in the NAL and find Sakaida liable
       for violation of Section 1.949(a) for the period May 29, 2006 (one
       year prior to adoption of the NAL) until June 19, 2006 (the date
       Sakaida filed its STA application).

   IV. ordering clauses

   15. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
       Act, and sections 0.111, 0.311 and 1.80(f)(4) of the Commission's
       Rules, Ted Sakaida & Sons Trucking IS LIABLE FOR A MONETARY FORFEITURE
       in the amount of five thousand, two hundred dollars ($5,200) for
       willful and repeated violations of Section 301 of the Act and Sections
       1.903(a) and 1.949(a) of the Rules.

   16. Payment of the forfeiture 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 credit card through the Commission's Debt and Credit Management
       Center at (202) 418-1995, or by mailing a 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 the 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 12th Street, SW, Room 1-A625, Washington,
       D.C. 20554.

   17. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by 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. S:S: 1.903(a) and 1.949(a).

   47 C.F.R. S: 1.955(a)(1).

   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, Federal Communications Commission 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.

   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).

   File No. 0002830194 (granted November 29, 2006).

   File No. 0002830185 (pending).

   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.

   Ted Sakaida & Son, Inc., Notice of Apparent Liability for Forfeiture, 22
   FCC Rcd 9962 (Enf. Bur., Spectrum Enf. Div. 2007) ("NAL").

   Id. at 9965 P: 10.

   Id. at 9966 P: 12.

   Id. at 9966 n. 28 (citing Petracom of Texarkana, LLC, Forfeiture Order, 19
   FCC Rcd 8096, 8097-8098 (Enf. Bur. 2004) (forfeiture reduced for voluntary
   disclosure of violation and initiation of corrective action prior to
   Commission enforcement action)).

   See "Petition for Reconsideration & Request for Reduction or Cancellation
   of Forfeiture," filed July 2, 2007 ("Response"). We note that although
   Sakaida refers to its filing as a "Petition for Reconsideration" of a
   delegated action it is in reality a response to the NAL, and will be
   referred to as such in this Forfeiture Order. See 47 C.F.R. S: 1.80(f)(3).

   Response at 7.

   Id. at 3-4.

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   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 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S: 503(b)(2)(E).

   Response at 4-5.

   Id. at 6-7.

   NAL, 22 FCC Rcd at 9965-66 P: 11.

   See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
   FCC Rcd 4387, 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("stating
   that inadvertence . . . is at best, ignorance of the law, which the
   Commission does not consider a mitigating circumstance") ("Southern
   California").

   Section 312(f)(1) of the Act defines "willful" as "the conscious and
   deliberate commission or omission of [any] act, irrespective of any intent
   to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
   Section 312(f)(1) of the Act clarifies that this definition of willful
   applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
   51 (Conf. Rep.), and the Commission has so interpreted the term in the
   Section 503(b) context. See Southern California, 6 FCC Rcd at 4388.

   In pertinent part, Section 503(b)(1) of the Act states that any person
   determined by the Commission to have "willfully or repeatedly failed to
   comply with . . . any rule, regulation, or order issued by the Commission
   . . . shall be liable to the United States for a forfeiture penalty. 47
   U.S.C. S: 503(b)(1) (emphasis added).

   Section 312(f)(1) of the Act defines "repeated" as "the commission or
   omission of [any] act more than once or, if such commission or omission is
   continuous, for more than one day." 47 U.S.C. S: 312(f)(2). The
   legislative history of Section 312(f)(1) of the Act clarifies that this
   definition of repeated applies to both Sections 312 and 503(b) of the Act,
   H.R. Rep. No. 97-765, 51 (Conf. Rep.), and the Commission has so
   interpreted the term in the Section 503(b) context. See Southern
   California, 6 FCC Rcd at 4388.

   See WTB Letter at 1.

   See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
   Apparent Liability, 19 FCC Rcd 7433, 7437-38 (2004) ("Discussion Radio")
   (stating that as a Commission licensee, Discussion Radio is charged with
   knowledge of the full range of its obligations, including its duty to
   timely seek renewal of its license to maintain operating authority and
   that this obligation attaches even if it fails to receive Commission
   notification regarding license renewal).

   47 U.S.C. S: 503(b)(6).

   Response at 3-4 (citing Section 503(b)(6) of the Act, 47 U.S.C. S:
   503(b)(6)).

   Response at 3.

   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 Discussion Radio, 19 FCC Rcd at
   7437-38 (finding that licensee should be sanctioned for both failing to
   file a timely renewal and unauthorized operation for the period of time
   (approximately 14 months) between expiration of its license and its
   eventual renewal filing); see also H.R. Rep. No. 101-386, at 435 (Conf.
   Rep.); see also NAL at 9964 P: 6.

   See, e.g., Discussion Radio, 19 FCC Rcd at 7437-38 (basing its decision on
   the continuing nature of the violations and not on statute of limitations
   issues); see also Response at 4.

   See Discussion Radio, 19 FCC Rcd at 7437-38.

   See Amendment of Parts 0, 1, 13, 22, 24 26, 27, 80, 87, 90, 95, 97, and
   101 of the Commission's Rules to Facilitate the Development and Use of the
   Universal Licensing System in the Wireless Telecommunications Service, WT
   Docket No. 98-20,  Memorandum Opinion and Order on Reconsideration, 14 FCC
   Rcd 11476, 11485-86 (1999) ("ULS MO&O") (stating that enforcement action
   may be initiated against licensees in the wireless services who file late
   renewal applications for both the untimely filing and any unauthorized
   operations).

   Id.

   Id.

   STA File No. 0002655701 (granted June 21, 2006).

   Response at 3.

   STA File No. 0002655701 (granted June 21, 2006). The WTB 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.

   See In the Matter of Petition for Reconsideration Concerning Liability of
   Benito Rish, Licensee of Radio Station WREM(AM) Monticello, ME, Memorandum
   Opinion and Order, 11 FCC Rcd 2861, 2861 (finding that "[a]lthough the
   violative conduct began outside the bounds of our forfeiture authority,
   that does not undercut our ability to impose a fine for the days that the
   violation continued within the statutory period preceding the ... NAL").

   47 U.S.C. S: 503(b).

   47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S: 504(a).

   See 47 C.F.R. S: 1.1914.

   (Continued from previous page)

   (continued ...)

   Federal Communications Commission DA 07-5090

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   Federal Communications Commission DA 07-5090