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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-317
Lockheed Martin Corporation ) NAL/Acct. No. 200732100015
Clarksburg, Maryland ) FRN # 0014357743
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 28, 2007 Released: March 2, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Lockheed
Martin Corporation ("Lockheed Martin"), licensee of satellite earth
station, call sign E970322, Clarksburg, Maryland, apparently liable
for forfeiture in the amount of eight thousand dollars ($8,000) for
operating its earth station without Commission authorization. Lockheed
Martin acted in apparent willful and repeated violation of Section 301
of the Communications Act of 1934, as amended, ("Act") and Section
25.102(a) of the Commission's Rules ("Rules").
II. background
2. On January 20, 2006, Lockheed Martin filed a request for special
temporary authority ("STA") to operate its earth station, call sign
E970322, with the Inmarsat-3 (F4) satellite located at 54DEG W.L.
during the westward drift of the satellite to a new location at 142DEG
W.L. pending grant of Lockheed Martin's then to-be-filed modification
of license application to include the Inmarsat-3 satellite at 142DEG
W.L. as a point of communication. The International Bureau granted
Lockheed Martin's STA request on February 1, 2006 for sixty days to be
effective from February 3, 2006 through April 3, 2006. Having
determined on June 7, 2006 that the STA expired on April 3, 2006,
Lockheed Martin's counsel filed a second STA request on June 8, 2006.
In that STA request, Lockheed Martin requested a 60 day extension of
the already expired first STA and also sought to have the new STA
effective from April 3, 2006, the expiration date of the first STA. On
July 3, 2006, the International Bureau granted Lockheed Martin's
second STA request, to be effective from June 18, 2006 through October
18, 2006.
3. Because it appeared that Lockheed Martin may have operated the earth
station without authority from April 4, 2006 through June 7, 2006
after the expiration of its STA, the International Bureau referred
this case to the Enforcement Bureau for investigation and possible
enforcement action. On October 11, 2006, the Enforcement Bureau's
Spectrum Enforcement Division issued a letter of inquiry ("LOI") to
Lockheed Martin.
4. In its November 13, 2006 response to the LOI, Lockheed Martin states
that it first became aware on June 7, 2006 that its license for earth
station E970322 had expired. Lockheed Martin acknowledges that it
operated earth station E970322 on a constant and regular basis between
and including April 4, 2006 and June 7, 2006. Lockheed Martin
emphasizes that throughout that time period it held a valid license
for the Clarksburg earth station that included the Immarsat-3 F4
satellite. Lockheed Martin states that, through an oversight by its
counsel, the initial STA was recorded on an internal tickler as a 180
day STA, rather than a 60 day STA. For this reason, it states that its
counsel failed to prepare a timely filed request for extension of the
STA. Further, Lockheed Martin requests that the error be treated as
minor in light of its mitigation plan, its extended history as an FCC
licensee, and given its prompt, direct, and voluntary disclosure to
the Commission.
III. discussion
5. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under, and in
accordance with a Commission granted authorization.
6. As a Commission licensee, Lockheed Martin was required to timely renew
its STA to allow its earth station to continue to communicate with the
Inmarsat-3 F4 satellite at 142DEG W.L., which is beyond the parameters
of the station's authorization. Lockheed Martin concedes that it
operated earth station E970322 without Commission authorization
constantly and regularly from April 4, 2006 through June 7, 2006. By
operating its earth station without authorization, Lockheed Martin
apparently violated Section 301 of the Act and Section 25.102(a) of
the Rules.
1. 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 Lockheed Martin's violations of Section 301
of the Act and Section 25.102(a) of the Rules were willful and
repeated.
2. In determining the appropriate forfeiture amount, Section 503(b)(2)(D)
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 $8,000.
3. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority. We propose a
forfeiture in the amount of $5,000 for Lockheed Martin's unauthorized
operation of its earth station E970322. In proposing this forfeiture
amount, we recognize that the Commission considers a licensee who
operates a station with an expired authorization in better stead than
a pirate broadcaster who lacks prior authority, and thus downwardly
adjust the $10,000 base forfeiture amount accordingly. We also
recognize that Lockheed Martin's unauthorized operation of earth
station E970322 was for a relatively short duration, approximately two
and a half months.
4. This $5,000 base forfeiture amount is subject to adjustment, however.
In this regard, we consider Lockheed Martin'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 Lockheed Martin,
could expect the assessment of higher forfeitures for violations.
Given Lockheed Martin's size and ability to pay a forfeiture, we
conclude that an upward adjustment of the base forfeiture amount to
$10,000 is appropriate.
5. Lockheed Martin asserts that its unauthorized operation of earth
station E970322 was caused by administrative oversight. Such
administrative oversight or inadvertence does not, however, mitigate
its violations. As a Commission licensee, Lockheed Martin is charged
with the responsibility of knowing and complying with the terms of its
authorizations (including STAs), the Act and the Rules. Lockheed
Martin further asserts that there was no technical affect of its not
renewing its STA and thereby operating beyond the authority granted in
its license, as there was little or no prospect that such operation
would cause interference to Commission licensees on the 6 GHz band
frequencies on which the earth station transmitted. It is well
established that the absence of public harm is not considered a
mitigating factor of a rule violation. We do find, however, that a
downward adjustment of the proposed forfeiture from $10,000 to $8,000
is warranted because Lockheed Martin 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
7. 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, Lockheed Martin IS
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount
of eight thousand dollars ($8,000) for the willful and repeated
violation of Section 301 of the Act and Section 25.102(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, Lockheed Martin 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 Lockheed Martin Corporation, Attn:
Jennifer A. Warren, Senior Director, Trade and Regulatory Affairs,
1550 Crystal Drive, Suite 300, Arlington, VA 22202.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. S 25.102(a).
Lockheed Martin filed an application for license modification for earth
station E970322 on June 15, 2006, File No. SES-MFS-2006-0615-01010. The
application was accepted for filing on August 9, 2006.
See File No. SES-STA-20060120-00074 (granted February 1, 2006).
See File No. SES-STA-20060608-00950 (granted July 3, 2006). The STA was
granted without prejudice to any future FCC enforcement action against
Lockheed Martin in connection with any unauthorized operation of its radio
facilities.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Lockheed Martin Corporation (October 11,
2006).
See Letter from Lockheed Martin Corporation to Kathryn S. Berthot, Deputy
Chief, Spectrum Enforcement Division, Enforcement Bureau (November 13,
2006) ("LOI Response").
Id. at 2.
Id. at 4.
Id. at 1.
Id. at Attachment C, Application for Earth Station Special Temporary
Authority.
Id.
Id. at 5.
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) ("Southern California"); 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)(D). See also Forfeiture Policy Statement, Report and
Order, 12 FCC Rcd 17087, 17110 (1997), recon. denied (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) (assessing a proposed
$5,000 forfeiture for operating a station for 14 months beyond the
expiration of its license); see also Gilmore Broadcasting Corp., Notice of
Apparent Liability, 21 FCC Rcd 6284, 6286-87 (Enf. Bur., Spectrum Enf.
Div., 2006); Criswell College, Notice of Apparent Liability, 21 FCC Rcd
5106, 5109 (Enf. Bur., Spectrum Enf. Div., 2006); National Weather
Networks, Inc., Notice of Apparent Liability, 21 FCC Rcd 3922, 3925 (Enf.
Bur., Spectrum Enf. Div., 2006) ("NWN"); Journal Broadcast Corporation,
Notice of Apparent Liability, 20 FCC Rcd 18211, 18213 (Enf. Bur.,
Spectrum Enf. Div., 2005); Shared Data Networks, LLC, Notice of Apparent
Liability, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div., 2005).
Lockheed Martin recently reported its net sales for 2006 as $39.6 billion.
See Press Release, Lockheed Martin Announces 2006 Fourth Quarter and
Year-End Results (January 25, 2007).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ...
is at best, ignorance of the law, which the Commission does not consider a
mitigating circumstance").
Pacific Western Broadcasters, Inc., Memorandum Opinion and Order, 50 FCC
2d 819 (1975) (rejecting a broadcaster's claim that the forfeiture should
be downwardly adjusted because its operations at excessive power levels
did not cause public harm or complaint, stating that "[t]he Commission not
only is concerned with actual interference, but is concerned with the
potential for interference"); NWN, 21 FCC Rcd at 3927 (rejecting a
licensee's claim that the forfeiture should be downwardly adjusted because
its operation of an unauthorized earth station did not cause interference
or disrupt other users); AGM-Nevada, LLC, Forfeiture Order, 18 FCC Rcd
1476, 1478-79 (Enf. Bur. 2003) (rejecting a licensee's claim that the
forfeiture should be downwardly adjusted because even though it operated
booster stations at unauthorized sites with excessive power levels, its
operations did not result in interference).
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 07-926
3
Federal Communications Commission DA 07-926