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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

   2

   Federal Communications Commission DA 08-46