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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