Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                   )   File No. EB-08-SE-025       
     In the Matter of                                              
                                   )   NAL/Acct. No. 200832100057  
     ABS-CBN International, Inc.                                   
                                   )   FRN # 0014189526            


                  notice of apparent liability for forfeiture

   Adopted: July 16, 2008 Released: July 18, 2008

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau

   I. introduction

    1. In this Notice of Liability for Forfeiture, we find ABS-CBN
       International, Inc. ("ABS-CBN"), former licensee of Fixed Satellite
       Service earth station E970116, apparently liable for a forfeiture in
       the amount of five thousand two hundred dollars ($5,200) for operating
       its earth station without Commission authority and for failing to file
       a timely renewal application for its earth station in apparent willful
       and repeated violation of Section 301 of the Communications Act of
       1934, as amended ("Act") and Sections 25.102(a) and 25.121(e) of the
       Commission's Rules ("Rules").

   II. background

    2. On September 19, 2006, ABS-CBN was granted a license modification for
       its earth station, call sign E970116, which provided authorization for
       an 11-meter C-band antenna and 7.6-meter Ku-band antenna. Under the
       terms of the license, ABS-CBN's authorization for the subject earth
       station expired on April 23, 2007. On November 1, 2007, ABS-CBN filed
       a modification application for another earth station, call sign
       E000584, to, among other things, re-license the antennas previously
       associated with earth station E970116. The International Bureau
       granted ABS-CBN's modification application for earth station E000584
       on January 23, 2008.

    3. Because it appeared that ABS-CBN operated earth station E970116
       without authorization, the International Bureau referred this case to
       the Enforcement Bureau's Spectrum Enforcement Division ("Division")
       for investigation and possible enforcement action. The Division issued
       ABS-CBN a letter of inquiry ("LOI") on February 11, 2008.

    4. In its March 6, 2008, Response to the LOI, ABS-CBN admits that it
       continuously operated earth station E970116 between April 23, 2007,
       the expiration date of the license, and January 23, 2008. ABS-CBN
       states that it inadvertently allowed the license for earth station
       E970116 to lapse, and that it first became aware of the expiration of
       the subject earth station license on July 9, 2007. On July 12, 2007,
       when it learned from the International Bureau that its license for
       earth station E970116 could not be reinstated, ABS-CBN asserts that it
       initiated a frequency coordination procedure for the antennas covered
       by the lapsed license. On November 1, 2007, upon completion of the
       frequency coordination process, ABS-CBN filed a modification
       application for an existing earth station license, E000584, to among
       other things, re-license the antennas previously associated with
       E970116. On January 23, 2008, the International Bureau granted
       ABS-CBN's modification application for earth station E000584.

    5. Also in its Response, ABS-CBN requests that we forego assessing a
       forfeiture in this case, or alternatively, assess a forfeiture that is
       substantially less than the base forfeiture amount established in
       Section 1.80 of the Commission's Rules. In arguing for mitigation,
       ABS-CBN states that until the instant proceeding, it continuously
       operated all of its earth stations in full compliance with the
       Commission's rules and has never been subject to a Commission
       enforcement action related to the operation of its earth stations.
       ABS-CBN also asserts that during the period of unauthorized operation
       it did not create any interference with other licensees. Further,
       ABS-CBN argues that it promptly disclosed to the International Bureau
       that its license for earth station E970116 had lapsed, and remedied
       the violation prior to any Commission inquiry or enforcement action.
       Finally, ABS-CBN states that it has implemented new license renewal
       measures that will ensure that all of its licenses will be renewed on
       a timely basis.

   III. discussion

    6. 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. Section 25.121(c)
       of the Rules provides that the license term for an earth station is
       specified in the instrument of authorization. Section 25.121(e) of the
       Rules requires the licensee of an earth station to file its renewal
       application "no earlier than 90 days, and no later than 30 days,
       before the expiration date of the license." Absent a timely filed
       renewal application, an earth station license automatically terminates
       at the end of the license period.

    7. As a Commission licensee, ABS-CBN was required to maintain its
       authorization in order to operate its earth station. ABS-CBN admitted
       that it operated earth station E970116 without Commission authority
       from the station's license expiration date of April 23, 2007 until
       January 23, 2008, the date that it received authorization to modify
       existing earth station E000584 to operate antennas previously
       associated with E970116. By operating earth station E970116 for 9
       months without Commission authorization, ABS-CBN apparently violated
       Section 301 of the Act and Section 25.102(a) of the rules. ABS-CBN
       also acted in apparent violation of Section 25.121(e) of the rules by
       failing to file a timely renewal application for the station.

    8. 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 "repeated" means more than once. Based on the record before
       us, it appears that ABS-CBN's violations of Section 301 of the Act and
       Sections 25.102(a) and 25.121(e) of the Rules were willful and
       repeated.

    9. 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.

   10. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
       for operation of a station without Commission authority and $3,000 for
       failure to file required forms or information. As the Commission has
       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 ABS-CBN's separate violations.

   11. Consistent with precedent, we propose a forfeiture in the amount of
       $1,500 for ABS-CBN's failure to timely file a renewal application
       within the time period specified in Section 25.121(e) of the Rules.
       Additionally, we propose a forfeiture in the amount of $5,000 for
       ABS-CBN's unauthorized operation of earth station E970116 after April
       23, 2007. In proposing a forfeiture of $5,000 for the station's
       unauthorized operation, 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.
       Thus, we propose an aggregate forfeiture of $6,500 ($1,500 for failure
       to timely file a renewal application and $5,000 for unauthorized
       operation).

   12. As a Commission licensee, ABS-CBN is charged with the responsibility
       of knowing and complying with the terms of its authorizations, the Act
       and the Rules. We do find, however, that a downward adjustment of the
       proposed forfeiture from $6,500 to $5,200 is warranted due to
       ABS-CBN's history of overall compliance with the rules, but find no
       other basis for mitigation of the proposed forfeiture amount.
       Concerning ABS-CBN's claim that its failure to timely renew its
       license was inadvertent, the Commission has long held that a downward
       adjustment of an assessed forfeiture is not justified where violators
       claim their actions or omissions were due to inadvertent errors or
       unfamiliarity with the statutory or regulatory requirements. ABS-CBN's
       claim of voluntary disclosure also fails. The Commission has
       considered voluntary disclosure to be a mitigating factor where the
       licensee brings a violation to the attention of the Commission
       immediately upon its discovery and before any Commission action is
       taken. ABS-CBN learned about the expiration of its authorization on
       July 9, 2007, but apparently did not notify the Commission until
       nearly four months later, on November 1, 2007, when it filed a
       modification application for one of its existing earth station
       licenses, E000584, to re-license the antennas previously associated
       with E970116. Finally, ABS-CBN's assertion that it did not create any
       interference with other licensees during the period of unauthorized
       operation is unavailing. It is well established that the absence of
       public harm is not considered a mitigating factor for a rule
       violation.

   IV. ORDERING CLAUSES

   13. 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, ABS-CBN
       International, Inc. 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 25.102(a) and 25.121(e) of the Commission's Rules.

   14. 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, ABS-CBN International, Inc. SHALL PAY the
       full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   15. 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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
       When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to: Chief Financial Officer -
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C. 20554. Please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures. ABS-CBN will also send electronic
       notification on the date said payment is made to
       Jennifer.Burton@fcc.gov and JoAnn.Lucanik@fcc.gov.

   16. 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.

   17. 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.

   18. 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 Maria Browne, Esq., Counsel to ABS-CBN
       International, Inc., Davis Wright Tremaine LLP, 1919 Pennsylvania
       Avenue, N.W., Suite 200, Washington, D.C. 20006-3402.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   File No. SES-MOD-20060801-01298.

   47 U.S.C. S: 301.

   47 C.F.R. S:S: 25.102(a) and 25.121(e).

   See Satellite Communications Services Information Re: Actions Taken,
   Public Notice, Report No. SES-00857 (IB rel. Sept. 20, 2006). ABS-CBN was
   granted a ten-year license to operate earth station E970116 on April 23,
   1997. See SES-LIC-19970113-00035.

   File No. SES-MFS-20071101-01487.

   See Satellite Communications Services Information Re: Actions Taken,
   Public Notice, Report No. SES-01003 (IB rel. Jan. 30, 2008). The license
   modification was granted without prejudice to any future Commission
   enforcement action against the corporation in connection with any
   unauthorized operation of its radio facilities.

   Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission, to Mr. S. Edmund
   Johnson, Engineer, ABS-CBN International, Inc. (Feb. 11, 2008).

   Letter from Maria Brown, Esq., Davis Wright Tremaine LLP, Counsel to
   ABS-CBN International, Inc., to Jennifer Burton, Esq., Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (Mar. 6, 2008) ("Response").

   Response at 4-6. See 47 C.F.R. S: 1.80.

   47 U.S.C. S: 301; 47 C.F.R. S: 25.102(a).

   47 C.F.R. S: 25.121(c).

   47 C.F.R. S: 25.121(e).

   47 C.F.R. S: 25.161.

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

   47 C.F.R. S: 1.80(a).

   See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
   recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
   repeated contained in the Act apply to violations for which forfeitures
   are assessed under Section 503(b) of the Act) ("Southern California").

   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).

   47 C.F.R. S: 1.80(b).

   See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
   Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7438 (2004)
   ("Discussion Radio"). See also La Carpa Corp., Notice of Apparent
   Liability for Forfeiture, 22 FCC Rcd 2744, 2745 (Enf. Bur., Spectrum Enf.
   Div., 2007) (forfeiture paid) ("La Carpa"); Lazer Broadcasting Corp.,
   Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 8710, 8712 (Enf.
   Bur., Spectrum Enf. Div., 2006) (forfeiture paid) ("Lazer"); Shared Data
   Networks, LLC, Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
   18184, 18186 (Enf. Bur., Spectrum Enf. Div., 2005) (forfeiture paid).

   See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
   against a broadcaster for failure to timely file its renewal application).
   See also La Carpa, 22 FCC Rcd at 2746 (proposing a $1,500 forfeiture
   against an earth station operator for failure to timely file a renewal
   application); Lazer, 21 FCC Rcd at 8712 (proposing a $1,500 forfeiture
   against an earth station operator for failure to timely file a renewal
   application).

   Section 503(b)(6) of the Act,  47 U.S.C. S: 503(b)(6), prohibits
   assessment of a forfeiture for a violation that occurred more than one
   year before the issuance of a NAL, but this section does not bar
   consideration of prior conduct in determining the appropriate forfeiture
   amount for violations that occurred within the one-year statutory period.
   See 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); 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 Rcd 193 (1967).

   See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
   for operating a broadcast station for 14 months beyond the expiration of
   its license); La Carpa,  22 FCC Rcd at 2746 (proposing a $5,000 forfeiture
   for operating an earth station for three years after the expiration of its
   license); Lazer, 21 FCC Rcd at 8712 (proposing a $5,000 forfeiture for
   operating an earth station for one year after the expiration of its
   license).

   PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC
   Rcd 2088 (1992); 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").

   See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
   8097-8098 (Enf. Bur., 2004). See also Side By-Side, Inc., Notice of
   Apparent Liability for Forfeiture, 23 FCC Rcd 898, 901 (Enf. Bur.,
   Spectrum Enf. Div., 2008), forfeiture ordered, 23 FCC Rcd 7393 (Enf. Bur.,
   Spectrum Enf. Div., 2008), review pending; Lazer, 21 FCC Rcd at 8712;
   Journal Broadcasting Corp., Notice of Apparent Liability for Forfeiture,
   20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div., 2005) ("Journal
   Broadcast") (forfeiture paid).

   We note that according to ABS-CBN, a consultant, acting on behalf of
   ABS-CBN, contacted the International Bureau's staff on July 11, 2007, to
   find out whether the expired license could be re-instated, but ABS-CBN
   provides no information as to whether the consultant voluntarily disclosed
   to International Bureau staff that ABS-CBN continued to operate the earth
   station.

   See Steamboat Ski & Resort Corp., Notice of Apparent Liability for
   Forfeiture, 22 FCC Rcd 15168 (Enf. Bur., Spectrum Enf. Div. 2007) (finding
   a downward adjustment was not warranted where licensee did not notify the
   Commission about the expiration of its authorization until 46 days later,
   when it filed a request for STA); Journal Broadcast, 20 FCC Rcd at 18214
   (Enf. Bur., Spectrum Enf. Div., 2005) (rejecting a violator's claim of
   prompt, voluntary disclosure where a renewal application was filed nearly
   60 days after the licensee learned that its earth station license had
   lapsed); 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 it
   was discovered).

   See 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"); 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);
   National Weather Networks, Notice of Apparent Liability for Forfeiture, 21
   FCC Rcd 3922, 3927 (Enf. Bur., Spectrum Enf. Div., 2006) (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).

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

   47 C.F.R. S:S: 0.111, 0.311 and 1.80.

   47 C.F.R. S: 1.80.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 08-1680

   4

   Federal Communications Commission DA 08-1680