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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-08-SE-722
)
Texas Soaring Association, Inc. NAL/Acct. No. 200932100061
)
Midlothian, Texas FRN # 0004540456
)
notice of apparent liability for forfeiture
Adopted: June 4, 2009 Released: June 8, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau
I. introduction
1. In this Notice of Liability for Forfeiture ("NAL"), we find Texas
Soaring Association, Inc. ("TSA"), former licensee of aviation support
station ("station") KSC8, in Midlothian, Texas, apparently liable for
a forfeiture in the amount of nine thousand dollars ($9,000) for
apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act") and Section 1.903(a) of
the Commission's Rules ("Rules") and for apparent willful violation of
Section 1.949(a) of the Rules. The noted apparent violations involve
TSA's operation of an aviation support station without Commission
authority and its failure to file a timely renewal application for the
station.
II. Background
2. On August 25, 2008, TSA filed a complaint with the Enforcement
Bureau's Spectrum Enforcement Division ("Division") alleging
interference with its use of frequency 123.30 MHz from commercial jets
inbound to Lubbock, Texas "over the last year." In its complaint, TSA
states that its glider club is the largest in the United States and
has more than 250 members. TSA notes that the club operates from its
own airfield on a scheduled basis throughout the year on Thursdays,
Saturdays, Sundays, holidays and other week days "when the flying
weather is particularly good." TSA also notes that its airfield may
have more than 20 operations per hour and, when busy, more than 120
take-off and landing operations. TSA asserts that multiple aircraft
landings and takeoffs at its airfield, make it critical that a glider
or powered towplane notify airport traffic by radio when entering the
flight traffic pattern.
3. Upon review of Commission's records, the Division found that TSA was
licensed to operate an aeronautical and fixed aviation support station
on frequency 123.30 MHz, under call sign KSC8, on August 11, 1998. The
license expired on September 22, 2003 and was cancelled on November
23, 2003. In addition, the records showed that on June 30, 2003,
approximately three months prior to the expiration of TSA's license
for station KSC8, the Commission issued a license renewal reminder
letter to TSA at its address of record; however, there is no record
that TSA filed a renewal application for station KSC8. On September 5,
2008, Division staff informed TSA that it had no authority to operate
an aviation support station.
4. On October 1, 2008, TSA filed an application with the Wireless
Telecommunications Bureau ("WTB") for authorization to operate an
aviation support station using frequency 123.30 MHz, the same
frequency assigned to its previous license under call sign KSC8. On
October 2, 2008, the WTB granted TSA's application for license under
call sign WQJJ668. The license expires on October 2, 2018. Commission
records show that TSA's address of record for aviation support station
WQJJ668 is the same address as that of former aviation support station
KSC8.
III. DISCUSSION
5. Section 301 of the Act prohibits the use or operation of any apparatus
for the transmission of energy or communications or signals by radio
except under, and in accordance with a Commission granted
authorization. Section 87.18(a) of the Rules states that stations in
the aviation services, with the exception of certain aircraft
stations, must be licensed. Section 87.25(b) of the Rules requires
aviation services to comply with the Commission's general rules of
practice and procedure in Part 1, Subpart F of the Rules. Section
1.903(a) of the Rules requires that wireless radio services "must be
used and operated ... with a valid authorization granted by the
Commission." Additionally, Section 1.949(a) of the Rules requires a
licensee to file a renewal application 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, an aviation station license
automatically terminates at the end of the license period.
6. As a Commission licensee, TSA is charged with the responsibility of
knowing and complying with the terms of its authorizations, the Act
and the Rules. Commission records show that TSA failed to renew its
license for station KSC8 prior to the expiration of its license on
September 22, 2003, and that the license was subsequently cancelled on
November 23, 2003. Also, the records show that a renewal reminder
letter was sent to TSA's address of record for station KSC8 on June
30, 2003, but no renewal application was filed. Further, TSA's August
25, 2008, complaint of interference to its operation on frequency
123.30 MHz, is itself affirmation of its continued operation of
station KSC8 without a valid license. TSA's complaint clearly states
that "over the last year,...TSA's ability to use frequency 123.30 has
been impaired from time to time." By operating station KSC8 without
Commission authorization, TSA apparently violated Section 301 of the
Act and Section 1.903(a) of the Rules and is apparently liable for a
forfeiture. TSA is also apparently liable for a forfeiture for failing
to file a timely renewal application for aviation support station KSC8
in apparent violation of Section 1.949(a) of the Rules.
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 "repeated" means more than once. Based on the record before
us, it appears that TSA's violation of Section 301 of the Act and
Section 1.903(a) of the Rules is willful and repeated, and its
violation of Section 1.949(a) of the Rules is willful.
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."
9. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether TSA's conduct prior to that time
period apparently violated the provisions of the Act and Rules and
from considering such conduct in determining the appropriate
forfeiture amount for violations that occurred within the one-year
statutory period. Thus, while we may consider the fact that TSA's
conduct has continued over a period that began in 2003, the forfeiture
amount we propose herein relates only to TSA's apparent violations
that have occurred within the past year.
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 a base
forfeiture amount of $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 TSA's separate
violations.
11. Consistent with precedent, we propose the full base forfeiture amount
of $3,000 for TSA's failure to timely file required renewal
applications for station KSC8 within the time period specified in
Section 1.949(a) of the Rules. Additionally, we propose a forfeiture
in the amount of $6,000 for TSA's unauthorized operation of station
KSC8 after its license had expired on September 22, 2003. In proposing
a forfeiture of $6,000 for the unauthorized operation of station KSC8,
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 $6,000 forfeiture relates to TSA's violations that
occurred within the past year, but takes into account the fact that
TSA's unauthorized operations spanned almost five years - from
September 22, 2003 through October 1, 2008. Thus, we propose an
aggregate forfeiture of $9,000 ($3,000 for failure to timely file
renewal applications and $6,000 for unauthorized operation of an
aviation station).
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, Texas Soaring
Association, Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of nine thousand dollars ($9,000) for the
willful and repeated violation of Section 301 of the Act and Section
1.903(a) of the Rules and the willful violation of Section 1.949(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, Texas Soaring Association, 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 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. Texas Soaring Association, Inc. will
also send electronic notification on the date said payment is made to
Jacqui.Johnson@fcc.gov and JoAnn.Lucanik@fcc.gov.
15. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, SW, Washington, DC
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 counsel for Texas Soaring Association,
Inc., Phillip C. Umphres, Esq., Burleson, Pate & Gibson, LLP, 2414
Akard Street, Suite 700, Dallas, Texas 75201.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a)
47 C.F.R. S: 1.949(a).
See Correspondence from Phillip C. Umphres, Attorney at Law for Texas
Soaring Association, Inc. to Federal Communications Commission, Attn:
Karen Mercer (August 25, 2008). ("Complaint")
Id.
See Federal Aviation Administration, Advisory Circular, AC No. 90-66A,
Recommended Standard Traffic Patterns and Practices for Aeronautical
Operations at Airports Without Operating Control Towers.
See Archived license record for Texas Soaring Association Inc, under call
sign KSC8.
Id. Reference No. 2042413: Renewal Reminder Letter dated June 30, 2003.
See File No. 0003596329 granting a license to Texas Soaring Association,
Inc., under call sign WQJJ668.
47 U.S.C. S: 301.
47 C.F.R. S: 87.18(a).
47 C.F.R. S: 87.25(b).
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
See 47 C.F.R. S: 1.955(a)(1)
See Complaint.
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).
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)("Forfeiture Policy Statement").
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, 22 FCC Rcd. 1051 (2007) (forfeiture
paid); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-71 (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 (1967), recon. den.,11 FCC 2d 193 (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) (forfeiture paid).
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 e.g., Discovery World Television, Inc., Notice of Apparent Liability
for Forfeiture, 24 FCC Rcd 2883 (Enf. Bur., Spectrum Enf. Div., 2009);
Bloomsburg University of Pennsylvania, Memorandum Opinion and Order and
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9357, 9359 (Media
Bur., Audio Div. 2008); Sunflower Communications, Inc., Memorandum Opinion
and Order and Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
7657, 7659 (Media Bur., Audio Div. 2008); Santa Cruz Educational
Broadcasting Foundation, Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 22 FCC 21033, 21035 (Media Bur., Audio
Div. 2007) (all proposing the full base forfeiture amount of $3,000
against broadcast station licensees for failure to file timely renewal
applications).
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).
See Mitchell Electric Membership Cooperative, Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 5538, 5541 (Enf. Bur., Spectrum Enf. Div.,
2007). See also Domtar Industries, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 13811, 13816 (Enf. Bur., Spectrum Enf. Div., 2006).
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 09-1258
2
Federal Communications Commission DA 09-1258