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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.
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Federal Communications Commission DA 07-5090
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Federal Communications Commission DA 07-5090