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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
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Federal Communications Commission DA 08-1680