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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-138
In the Matter of
) NAL/Acct. No. 200832100013
Able Infosat Communications, Inc.
) FRN # 0001643568
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 28, 2008 Released: January 30, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Able
Infosat Communications, Inc. ("Able Infosat"), licensee of Very Small
Aperture Terminal ("VSAT") system, earth station call sign E070072,
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000) for operating its Canada-based satellite system in
the United States without Commission authority, 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. Able Infosat is a wholly-owned subsidiary of Infosat Communications,
Inc. ("Infosat Canada"), a Canadian company that provides fixed and
mobile satellite communications services in Canada reselling satellite
communications capacity of Telesat Canada, Inmarsat, Mobile Satellite
Ventures and Iridium. According to Able Infosat, in the late 1990s,
Infosat Canada established a U.S. subsidiary, Infosat US, to meet the
mobile satellite needs of its customers doing business in the United
States. In 2006, Infosat Canada acquired Able Communications, Inc., a
U.S. company in the business of providing two-way microwave radio
equipment and services. Following the acquisition in 2006, Able
Communications, Inc.'s name was changed to Able Infosat, and Infosat
US's satellite business was transferred to Able Infosat and
consolidated with Able Infosat's two-way microwave business. Able
Infosat's principal purpose remained that of Infosat US: to provide
service to Infosat Canada's customers in the U.S.
3. Able Infosat states that starting in October 2005, Infosat Canada
began making remote terminals available to some of its customers for
deployment at locations within the United States. The operation of
these terminals was initiated without Commission authority, an error
for which Able Infosat states it accepts full responsibility.
4. According to Able Infosat, the fact that Infosat Canada's U.S. VSAT
operations were not licensed came to the attention of its counsel on
April 11, 2007, during a meeting with Commission staff that discussed
matters regarding the proposed sale of Able Infosat's parent company,
Telesat Canada and BCE Inc. Upon advice of its counsel, Able Infosat
filed an application on April 20, 2007 with the Commission for a VSAT
license, and at the same time submitted a request for special
temporary authority (STA) to operate its VSAT system pending action on
its license request. In the STA request, Able Infosat disclosed its
unauthorized operations. The International Bureau granted Able
Infosat's VSAT license application on May 29, 2007, and concurrently
dismissed the STA application as moot. Able Infosat's VSAT license is
a blanket license authorizing the company to deploy up to 10,000
remote units anywhere in the contiguous United States.
5. The Enforcement Bureau's Spectrum Enforcement Division issued Able
Infosat a letter of inquiry ("LOI") on August 8, 2007. In its
September 7, 2007 Response to the LOI, Able Infosat admits that it
failed to acquire a VSAT license from the Commission, and that it
operated its station and the associated remote terminals without
Commission authority. Able Infosat explains that upon learning that
Commission authority was required for the company's U.S. VSAT
operations, it took immediate steps to apply for the requisite license
and to request an STA to operate pending the grant of a new license
application. In addition, Able Infosat states that it has implemented
procedures to ensure that in the future, Commission authority is
sought prior to commencing any operations for which Commission
authority is required. Able Infosat now makes regulatory compliance an
internal compulsory review process.
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.
7. Able Infosat admits that it failed to file an application prior to
commencing U.S. operations in October 2005. Moreover, Able Infosat
admits that it continued to operate until it filed an STA request and
an application on April 20, 2007. Thus, it appears that Able Infosat
violated Section 301 of the Act and Section 25.102(a) of the Rules by
operating its VSAT system in the United States without Commission
authority.
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 "repeatedly" means more than once. Based upon the record
before us, it appears that Able Infosat's violation of Section 301 of
the Act and Section 25.102(a) of the Rules was 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 ten thousand dollars ($10,000).
10. Section 1.80(b) of the Rules sets a base forfeiture amount of ten
thousand dollars ($10,000) for operation of a station without
Commission authority. Based on the record in this proceeding, we
propose a forfeiture of $10,000 for Able Infosat's unauthorized
operations. We do not find that any downward adjustments to this
proposed forfeiture amount are appropriate. Although we have made
downward adjustments in cases where a licensee has operated under
color of authority or under an expired license, we do not find such
adjustment appropriate in this case. Able Infosat's unauthorized
operation of its VSAT system was undertaken without any previous
Commission authorization in violation of the Act and Commission rules.
Accordingly, we propose a $10,000 forfeiture. We note that the
proposed forfeiture relates to Able Infosat's apparent violations that
occurred only within the past year, but takes into account that those
apparent violations were continuous in nature.
11. Nor do we find that a downward adjustment for good faith or voluntary
disclosure is warranted. Although we have made downward adjustments in
cases where a licensee made voluntary disclosure to Commission staff,
and undertook corrective measures after learning of its violations but
prior to any Commission inquiry or initiation of enforcement action,
that is not the case here. Able Infosat's disclosure concerning its
VSAT operations in the United States was made during formal
discussions with Commission staff concerning a proposed transaction.
It was upon learning from staff that no authority had been obtained
for its U.S. VSAT operations, and upon staff directive to file an
application requesting Commission authority as soon as possible, that
Able Infosat took corrective actions to come into compliance with
Commission rules.
IV. ORDERING CLAUSES
12. 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, Able Infosat
Communications, Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of ten thousand dollars ($10,000) for the
willful and repeated violation of Section 301 of the Act and Section
25.201(a) of the Rules.
13. 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, Able Infosat Communications, Inc., SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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 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 12th Street, S.W., Room
1-A625, Washington, D.C. 20554.
15. 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.
16. 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.
17. 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 Able Infosat Communications, Inc.,
Attention: Mr. Ed Mallet, General Manager, 5906 Broadway Street,
Pearland, TX 77581, and its counsel, Joseph A. Godles, Esq., Goldberg,
Godles, Wiener & Wright, 1229 Nineteenth Street, N.W., Washington,
D.C. 20036-2413.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
File No. SES-LIC-20070420-00491, granted May 29, 2007.
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
Able Infosat and its parent company, Telesat Canada (a Canadian
corporation, wholly owned by BCE, Inc.) were acquired on October 30, 2007,
by Canadian Holding Company, 4363205 Canada Inc. See In the Matter of BCE
Inc. and Loral Skynet Corporation, Transferors/Assignors, and 4363205
Canada Inc., 4363213 Canada Inc., and Skynet Satellite Corporation,
Transferees/Assignees, For Consent to Transfer of Control or Assignment of
Licenses and Authorizations held by Telesat Canada, Able Infosat
Communications, Inc., Loral Skynet Corporation, and Loral Skynet Network
Services, Inc. and Petitions for Declaratory Ruling that the Transaction
Is Consistent with Section 310(b)(4) of the Communications Act, Memorandum
Opinion and Order and Declaratory Ruling, 22 FCC Rcd 18049 (2007)
("BCE/Holdco Transaction"). The BCE/Holdco Transaction was approved by the
Commission on October 3, 2007 and consummated by the parties on October
30, 2007.
See Letter from Joseph A. Godles, Esq., attorney for Able Infosat
Communications, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, September 7, 2007 ("Able Infosat Response").
See File Nos. 0002477896 and 0002490705. The acquisition of Able
Communications, Inc. by Infosat Canada was consummated on February 16,
2006.
Able Infosat Response at 2.
Id. at 3. Able Infosat states that operation of VSAT remote terminals in
the United States began in October 2005 at various customer locations. The
remote terminals were installed by Infosat Canada's customers. Id. at 5.
Id. at 6.
SES-LIC-20070420-00491.
SES-STA-20070420-00493.
See Actions Taken, Satellite Communications Services Information, Public
Notice, Report No. SES-00932, May 30, 2007.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Ed Mallet,
General Manager, Able Infosat Communications (August 8, 2007).
Able Infosat Response at 5.
Id. at 4.
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) (defining a "willful" violation as the
"conscious and deliberate commission or omission of such act, irrespective
of any intent to violate any provision of this Act or any rule or
regulation of the Commission," and defining "repeated" as a violation that
"continues for more than one day."). The definition of willful and the
definition of repeated apply to violations for which forfeitures are
assessed under Section 503(b) of the Act. See Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied 7 FCC Rcd 3454 (1992).
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. 1.80(b).
See e.g., Arnold Broadcasting Company, Inc., Forfeiture Order, 19 FCC Rcd.
14123, 14124, P: 10 (Enf. Bur. 2004), recon. denied on other grounds, 20
FCC Rcd. 10617 (Enf. Bur. 2005). See also, Discussion Radio, Inc.,
Memorandum Opinion and Order and Notice of Apparent Liability, 19 FCC Rcd
7433, 7438 (2004).
See e.g., Domtar Industries, Inc., 21 FCC Rcd. 13811 (Enf. Bur., Spectrum
Enf. Div., 2006) (proposing the base forfeiture amount of $10,000 for
operating without Commission authorization and an upward adjustment of
$4,000 for unauthorized operations that spanned over a five-year period).
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 issuance of 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, e.g., 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 2d 193, 195 (1967); Bureau D'Electronique Appliquee, Inc., Notice
of Apparent Liability for Forfeiture, 20 FCC Rcd 3445, 3447-48 (Enf. Bur.,
Spectrum Enf. Div., 2005), forfeiture ordered, 20 FCC Rcd 17893 (Enf.
Bur., Spectrum Enf. Div., 2005).
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur., 2004). See also Hare Planting Co., Inc., Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 13517, 13520 (Enf. Bur.,
Spectrum Enf. Div., 2006), forfeiture ordered, 22 FCC Rcd 7530 (Enf. Bur.,
Spectrum Enf. Div., 2007) (adjusting a proposed forfeiture from $6,500 to
$5,200 when the prior licensee made voluntary disclosures to Commission
staff and undertook corrective actions prior to any Commission inquiry or
initiation of enforcement action); Jennie Stuart Medical Center, Notice
of Apparent Liability for Forfeiture, 22 FCC Rcd 6888, 6890 (Enf. Bur.,
Spectrum Enf. Div., 2007) (adjusting a proposed forfeiture from $6,500 to
$5,200 when the prior licensee made voluntary disclosures to Commission
staff through its request for an STA and undertook corrective measures
after learning of its violations prior to any Commission inquiry or
initiation of enforcement action).
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.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-168
5
Federal Communications Commission DA 08-168