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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-324
Miller Breweries East, Inc. ) NAL/Acct. No. 200832100011
Trenton, Ohio ) FRN # 0016100273
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 08, 2008 Released: January 10, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Miller
Breweries East, Inc. ("Miller"), former licensee of Private Land
Mobile Radio Service ("PLMRS") station WPIM837 apparently liable for a
forfeiture in the amount of six thousand five hundred ($6,500) for
operating a PLMRS station without Commission authority and for failing
to file a timely renewal application for the station. Miller 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 ("rules").
II. background
2. On July 26, 2000, Miller was granted a renewal of its PLMRS station
license under call sign WPIM837, with an expiration date of October
12, 2005. Miller did not file a renewal application, and consequently
its license to operate station WPIM837 expired on October 12, 2005. On
August 16, 2007, Miller filed with the Wireless Telecommunications
Bureau ("WTB") a request for Special Temporary Authority ("STA") to
operate WPIM837. On August 28, 2007, WTB granted Miller's STA request
under call sign WQHL302.
3. Because it appeared that Miller may have operated WPIM837 after the
expiration of its license, WTB referred this case to the Enforcement
Bureau for investigation and possible enforcement action. On October
18, 2007, the Enforcement Bureau's Spectrum Enforcement Division
issued a letter of inquiry ("LOI") to Miller.
4. In its November 16, 2007 response to the LOI, Miller stated that it
believes it first became aware of the expiration of its license for
station WPIM837 on or about January 27, 2007. Miller stated that upon
confirming the expiration of its license, it initially worked with an
outside vendor to prepare an application to renew the license. Miller
explained that this vendor "did not have experience in this type of
expired license situation, and the preparation of the application
document was delayed." On March 8, 2007, Miller filed its application
for a PLMRS station, which was subsequently amended at the request of
Commission staff. Miller stated that, due to concerns with the vendor
that assisted with its March application, it ultimately hired a
license specialist. Miller submitted a request for STA on August 16,
2007 and submitted an amended application for permanent authority on
August 22, 2007. WTB granted Miller's STA request on August 28, 2007.
5. Miller explained that it failed to file a timely license renewal
application for station WPIM837 because, due to personnel changes or
other oversight, the appropriate personnel did not receive the notice
of renewal. Miller explained that, since discovering the expiration,
it took corrective measures including: hiring a new firm to review all
Commission-granted licenses, designating staff members to monitor the
licenses, and retaining an outside vendor as an additional check on
licensing matters. Miller admitted that it operated the station beyond
the license expiration date without Commission authorization.
Specifically, Miller stated that it continuously operated station
WPIM837 from the expiration of its license on October 12, 2005 until
the grant of STA to operate under call sign WQHL302 on August 28,
2007, a period of twenty-two months.
III. discussion
6. 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.
7. As a Commission licensee, Miller was required to maintain its
authorization in order to operate its PLMRS station. Miller admitted
that it operated the PLMRS station without Commission authority from
the station's license expiration date of October 12, 2005 until August
28, 2007. By operating its PLMRS station for approximately 22 months
without Commission authorization, Miller apparently violated Section
301 of the Act and Section 1.903(a) of the rules. Miller also acted in
apparent violation of Section 1.949(a) 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 "repeatedly" means more than once. Based upon the record
before us, it appears that Miller's violations of Section 301 of the
Act and Sections 1.903(a) and 1.949(a) 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 $6,500.
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 and three thousand dollars ($3,000) for failure
to file required forms or information. The Commission has held that a
licensee's failure to timely file a renewal application and its
continued operations without authorization constitute separate
violations of the Act and the rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Miller's separate violations.
11. We propose a forfeiture amount of five thousand dollars ($5,000) for
Miller's continued operation of its PLMRS station prior to the grant
of STA on August 28, 2007. In proposing this amount for Miller'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 precedent, the proposed $5,000 forfeiture takes into
account that Miller's unauthorized operations spanned twenty-two
months from the license's expiration date. Additionally, we propose a
forfeiture amount of one thousand five hundred dollars ($1,500) for
Miller's failure to file the renewal application for its PLMRS station
within the time period specified in Section 1.949(a) of the rules.
Thus, we propose an aggregate forfeiture of $6,500.
12. The $6,500 base forfeiture amount is not subject to downward
adjustment for good faith or voluntary disclosure. Although Miller
attempted corrective measures prior to any Commission inquiry or
initiation of enforcement action, the company failed to act swiftly.
Miller waited nearly three months after filing its initial March 2007
application for a license, and five months after discovery of the
violations, before it voluntarily disclosed its unauthorized operation
of the station to Commission personnel. Moreover, Miller did not
submit a request for STA to continue operating until approximately
seven months after discovering that its license had expired. As a
Commission licensee, Miller is charged with the responsibility of
knowing and complying with the terms of its authorization, the Act,
and the rules, including the requirement to timely renew the
authorization for its PLMRS station. Under the circumstances, and
consistent with precedent, we find that no reduction of the proposed
forfeiture is warranted.
IV. ORDERING CLAUSES
13. 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,
Miller 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.
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, Miller 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/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.
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 Michelle W. Cohen, Counsel to Miller
Products Company, Thomson Hine LLP, 1920 N. Street, N.W., Washington,
D.C. 20036-1600.
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. 0003140158. The STA was granted for a six-month period and
expires February 24, 2008.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mark Koch, Miller
Breweries East, Inc. (October 18, 2007).
See Letter from Michelle W. Cohen, Counsel to Miller Products Company, to
Kevin M. Pittman, Attorney, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (November 16, 2007)
("Response"). The Response includes the declaration of Michael T. Jones,
Vice President and Secretary, Miller Breweries East, Inc.
Id. at 2.
Id.
Id.
Id. After submission of its initial application in March, Miller
specifically apprised Commission personnel of the expiration of its
license and informally requested STA to continue operation of the station.
See Letter of Mark Koch, Miller Breweries East, Inc., to Federal
Communications Commission, Gettysburg, Pennsylvania (June 14, 2007).
Response at 2.
See File Nos. 0002940300 and 0003140158, respectively.
See File No. 0003140158.
Response at 2.
Id. at 3.
Id.
Id.
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).
Response at 3.
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).
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 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).
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; see also Yellow Cab Leasing
Inc., Canton, Ohio, Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 12719, 12722 (Enf. Bur., Spectrum Enf. Div., 2007) ("Yellow Cab"),
forfeiture ordered, 22 FCC Rcd 19871 (2007); Imperial Sugar Co., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 4987 (Enf. Bur., Spectrum
Enf. Div., 2007), forfeiture ordered, 22 FCC Rcd 17346 (Enf. Bur.,
Spectrum Enf. Div., 2007) ("Imperial Sugar").
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); Yellow Cab, 22 FCC Rcd at 12722 (proposing a $5,000 forfeiture
for operating a station for 3. years beyond the expiration of its
license); 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, 19 FCC Rcd at 7437-38 (proposing a $1,500 forfeiture
for failure to file a timely renewal); 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), forfeiture ordered, 22 FCC Rcd 7530 (Enf. Bur.,
Spectrum Enf. Div., 2007); Imperial Sugar, 22 FCC Rcd at 4988 (proposing a
$1,500 forfeiture for failure to file a timely renewal for PMLRS station).
See Letter of Mark Koch, Miller Breweries East, Inc., to Federal
Communications Commission, Gettysburg, Pennsylvania (June 14, 2007).
See Discussion Radio, 19 FCC Rcd at 7437; see also Gilmore Broadcasting
Corp., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6284,
6286-87 (Enf. Bur., Spectrum Enf. Div., 2006); Criswell College, Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 5106, 5109 (Enf. Bur.,
Spectrum Enf. Div., 2006); National Weather Networks, Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 3922, 3926 (Enf. Bur, Spectrum Enf.
Div., 2006); Journal Broadcast Corp., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div.,
2005); Shared Data Networks, Notice of Apparent Liability for Forfeiture,
20 FCC Rcd 18184, 18187-88 (Enf. Bur., Spectrum Enf. Bur., 2005).
See Mitchell Electric Membership Cooperative, Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 5538, 5541 (Enf. Bur., Spectrum Enf. Div.,
2006) (finding that a downward adjustment was unwarranted where the
violator waited six months after becoming aware of the violation to notify
Commission staff and seek authority to operate the station); American
Paging Inc., Memorandum Opinion and Order, 12 FCC Rcd 10417, 10420
(Wireless Telecommunications Bureau, 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 one month after having various conversations with Commission
staff regarding an STA and that a downward adjustment for good faith
attempts to comply was unwarranted where the violator continued to operate
the station without authorization after its STA request was denied).
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 08-46
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Federal Communications Commission DA 08-46