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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-07-SE-171
Richmond Association
) NAL/Acct. No. 200832100010
d/b/a Hilltop Shopping Center
) FRN # 0010638468
Richmond, California
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 3, 2008 Released: January 7, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Richmond
Association, d/b/a Hilltop Shopping Center ("Richmond"), former
licensee of Industrial/Business Pool Radio Service Station WPOG498,
apparently liable for a forfeiture in the amount of six thousand, five
hundred dollars ($6,500) for operating the station without Commission
authority and for failing to file a timely renewal application for the
station. Richmond acted in apparent willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended ("Act"), and
Sections 1.903(a) and 1.949(a) of the Commission's rules.
II. background
2. On October 25, 1999, the Wireless Telecommunications Bureau ("WTB")
granted Richmond a license in the Industrial/Business Pool Radio
Service under the call sign WPOG498, with an expiration date of
October 25, 2004. Richmond did not file a renewal application, and the
WTB cancelled the license for WPOG498 on December 25, 2004. On May 14,
2007, Richmond filed with the WTB a request for Special Temporary
Authority ("STA") to operate WPOG498, acknowledging in an attachment
to the STA request its failure to renew the station's license prior to
its expiration date. Subsequently, Richmond filed a license
application for permanent authority to operate its station and the
license was granted by the WTB on July 6, 2007, under the call sign
WQHD555.
3. Because it appeared that Richmond may have operated WPOG498 after the
expiration of its license, the WTB referred this case to the
Enforcement Bureau for possible enforcement action. On August 2, 2007,
the Enforcement Bureau's Spectrum Enforcement Division issued to
Richmond a letter of inquiry ("LOI").
4. On September 13, 2007, the Enforcement Bureau received Richmond's
response to the LOI ("Response"). In its Response, Richmond stated
that it became aware of the expiration of its license to operate
station WPOG498 shortly before May 31, 2007. According to Richmond, a
former employee responsible for licensing matters had not submitted
the license renewal prior to departing the company at the end of 2004
and "the responsibility for managing the FCC license had not been
transferred to another employee." Richmond admitted to operating
station WPOG498 continuously without Commission authority from October
25, 2004 until May 31, 2007.
III. DISCUSSION
5. 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 that licensees
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.
6. As a Commission licensee, Richmond was required to maintain its
authorization in order to operate station WPOG498. Richmond admitted
that it operated the station without Commission authority from the
station's license expiration date of October 25, 2004, until the STA
was granted May 31, 2007. By operating station WPOG498 for
approximately two and one-half years without authorization, Richmond
apparently violated Section 301 of the Act and Section 1.903(a) of the
Rules. Richmond also acted in apparent violation of Section 1.949(a)
of the Rules by failing to file a timely renewal application for the
station.
7. 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 Richmond's violations of Section 301 of the
Act and Sections 1.903(a) and 1.949(a) of the Rules were willful and
repeated.
8. 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 $6,500.
9. 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 and three thousand dollars ($3,000) for failure
to file required forms or information. As the Commission recently
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 Richmond's separate violations.
10. We propose a $5,000 forfeiture for Richmond's continued operation of
station WPOG498 after the expiration of its license on October 25,
2004. In proposing a forfeiture of $5,000 for the station's
unauthorized operations, 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.
Consistent with recent precedent, the proposed $5,000 forfeiture takes
into account that Richmond's unauthorized operations spanned almost
two and one-half years from the license's expiration date. In
addition, we propose a $1,500 forfeiture for Richmond's failure to
file the renewal application for station WPOG498 within the time
period specified in Section 1.949(a) of the Rules. Thus, we propose an
aggregate forfeiture of $6,500.
I. ORDERING CLAUSES
1. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Richmond Association IS hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of six thousand, five hundred dollars
($6,500) for the willful and repeated violation of Section 301 of the
Act and Sections 1.903(a) and 1.949(a) of the Rules.
2. 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, Richmond Association SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
3. 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 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.
4. 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.
5. 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.
6. 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 Herb Dunnavant, Richmond Association d/b/a
Hilltop Shopping Center, 2200 Hilltop Mall Road, Richmond, California
94806.
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).
See File No. 0003028346. WTB granted the STA on May 31, 2007, under the
call sign WQGZ292.
See File No. 0003097626.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Alan Sousa,
Richmond Association d/b/a Hilltop (August 2, 2007).
On September 6, 2007, Richmond filed an unsigned response to the LOI
without an affidavit or declaration under penalty of perjury. On September
13, 2007, the Enforcement Bureau's Spectrum Enforcement Division received
a copy of Richmond's signed response to the LOI, followed by receipt of
the original response letter on September 14, 2007.
See Letter from Herb Dunnavant, Interim Mall Manager, Richmond Associates
d/b/a Hilltop Shopping Center to Karen Mercer, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission (September
5, 2007).
Response at 1.
Id.
Id.
Id. at 2.
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
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), recon. denied, 7 FCC Rcd 3454 (1992); see also Domtar
Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
13811, 13815 (Enf. Bur., Spectrum Enf. Div., 2006); National Weather
Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
3922, 3925 (Enf. Bur., Spectrum Enf. Div., 2006).
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, 19 FCC Rcd 7433, 7438 (2004) ("Discussion
Radio")(proposing forfeitures of $5,000 and $1,500 against a broadcaster
who operated its station for 14 months without Commission authority and
failed to timely file its renewal application).
See Discussion Radio, 19 FCC Rcd at 7438; see also Imperial Sugar Company,
Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 4987, 4990 (Enf.
Bur., Spectrum Enf. Div., 2007), forfeiture ordered, 22 FCC Rcd 17346
(Enf. Bur., Spectrum Enf. Div., 2007) ("Imperial Sugar"); Journal
Broadcast Corporation, Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd. 18211, 18213 (Enf. Bur., Spectrum Enf. Div., 2005).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); see also Five Star Parking d/b/a Five Star Taxi Dispatch, Notice
of Apparent Liability for Forfeiture, 22 FCC Rcd 18857 (Enf. Bur.,
Spectrum Enf. Div., 2007)(proposing a $5,000 forfeiture for operating a
station 2. years beyond the expiration of its license), response pending;
Imperial Sugar, 22 FCC Rcd at 4990 (proposing a $5,000 forfeiture for
operating a station 1. years beyond the expiration of its license).
See Discussion Radio supra; see also Imperial Sugar, 22 FCC Rcd at
4989-4990 (proposing a $1,500 forfeiture for failure to file timely
renewal application for a PLMRS station); Hare Planting Co., Inc., Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd 13517, 13519 (Enf. Bur.,
Spectrum Enf. Div., 2006) (proposing a $1,500 forfeiture for failure to
file a timely renewal for a PLMRS station), forfeiture ordered, 22 FCC Rcd
7530 (Enf. Bur., Spectrum Enf. Div., 2007).
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.
47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-21
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Federal Communications Commission DA 08-21