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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number: EB-07-DV-0334
)
The Starfish Television Network NAL/Acct. No.: 200832800006
)
Midvale, Utah FRN: 0016514879
)
)
FORFEITURE ORDER
Adopted: July 15, 2009 Released: July 17, 2009
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of one thousand, one hundred dollars ($1,100) to The
Starfish Television Network ("Starfish"), Midvale, Utah, for willful
and repeated violations of Section 301 of the Communications Act of
1934, as amended, ("Act") and Section 25.102(a) of the Commission's
Rules ("Rules"). On July 31, 2008, the Enforcement Bureau's Denver
Office issued a Notice of Apparent Liability for Forfeiture ("NAL") in
the amount of $5,000 to Starfish for operating its fixed satellite
earth station without Commission authorization. Starfish filed a
response ("Response") on September 15, 2008. In this Order, we
consider Starfish's arguments that it operated in good faith and
relied on outside companies to handle the licensing process, and that
the forfeiture should be reduced because of Starfish's inability to
pay.
II. BACKGROUND
2. On April 28, 2008, in response to a complaint, agents from the
Enforcement Bureau's Denver Office visited the Starfish facility,
located at 6952 South High Tech Drive, in Midvale, Utah, to conduct an
interview with Starfish's Chief Operating Officer ("COO"). The
conversation revealed that Starfish was operating a fixed earth
station in the 6 GHz band, "C-Band," without an authorization from the
Commission. According to the COO, the Starfish fixed earth station
began transmitting a compressed digital television signal on April 18,
2007. In addition, the COO explained that the uplink is transmitting
to the Galaxy 11's transponder 19. In response to questions from the
Denver agents, the COO produced a document showing that Starfish was
operating the fixed earth station with a center frequency of 6299.5
MHz.
3. During the April 28, 2008, interview, Starfish personnel contacted the
company that they had contracted with to file the FCC application for
the earth station authorization with the Commission, to check the
status of their authorization application. Starfish personnel
indicated that the licensing company explained that the licensing
process had not been completed, apparently due to an item regarding
frequency coordination, but that they would look into the licensing
issue and get back to Starfish that same day. The COO stated that
Starfish's engineering consultant had filed the station authorization
paperwork with the licensing company about six to eight months
earlier.
4. Still on April 28, 2008, learning that the uplink was operating in the
C-Band (6 GHz), FCC Agents conducted an analysis of signals coming
from the Starfish uplink equipment and detected an RF signal on a
center frequency of approximately 6299.5 MHz, operating with an
occupied bandwidth of approximately 2.5 MHz. After determining the
operating center frequency of the Starfish uplink, FCC agents met with
the COO, the engineering consultant and a staff engineer. The agents
issued a Notice of Unlicensed Operation (NOUO) to the COO. The COO
signed the NOUO. The COO stated that apparently the licensing company
had issues with one of the companies that they notified with the
frequency coordination and that licensing company did not follow-up
after this and the FCC license application was stalled and not
submitted.
5. On April 29, 2008, the Denver agents returned to the Starfish uplink
transmitter location to monitor the RF output of the uplink. The
agents observed an RF signal operating on a center frequency of about
6299.5 MHz and with an occupied bandwidth of approximately 2.5 MHz.
6. On April 30, 2008, the Denver Office received a response from the COO
to the NOUO to Starfish. The COO acknowledged his failure to follow up
with licensing company to ensure that the earth station authorization
was approved and granted by the Commission and enclosed a copy of the
Application for new Earth Station Authorizations, FCC Form 312,
submitted for The Starfish Television Network along with a Payment
Confirmation for The Starfish Television Network dated April 28, 2008.
7. A review of Commission records revealed that the Starfish application
for authorization for its earth station was published in a Commission
Public Notice on May 7, 2008. Further review revealed that Starfish's
application for authorization of its earth station was granted
effective June 9, 2008.
8. On July 31, 2008, the Denver Office issued a NAL in the amount of
$5,000 to Starfish, finding that Starfish apparently willfully and
repeatedly violated Section 301 of the Act and Section 25.102 of the
Rules by operating its fixed satellite earth station without
Commission authorization. In its Response, Starfish argues that it
operated in good faith and relied on outside parties concerning the
licensing process, and that the forfeiture amount should be reduced
because of Starfish's demonstrated inability to pay.
III. DISCUSSION
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining Starfish's response, Section 503(b)
of the Act requires that the Commission take into account 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 other such matters as justice may
require.
10. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under, and in
accordance with a Commission granted authorization. On April 28, 2008,
investigation by Denver agents revealed that Starfish was operating on
6299.5 MHz, a frequency not authorized for its use by the Commission.
Starfish received a NOUO from the Denver agents warning it against
continuing to operate on channels for which it did not hold a valid
station authorization. Again, on April 29, 2008, the Denver agents
found Starfish operating on 6299.5 MHz without a Commission
authorization. Starfish's Chief Operations Officer admitted to
operating a fixed satellite earth station on 6299.5 MHz from The
Starfish Television Network located at 6952 South High Tech Drive,
Midvale, Utah, without a valid authorization issued by the FCC.
11. In its Response, Starfish does not dispute that it operated a fixed
satellite earth station on 6299.5 MHz without a license, but argues
that it acted in good faith to obtain a license prior to the Denver
Office inspection. Reductions based on good faith efforts to comply
generally involve situations where violators demonstrate that they
initiated measures to correct or remedy violations prior to a
Commission inspection or investigation. We accept Starfish's
explanation concerning its efforts to have its fixed satellite earth
station licensed and, consequently, we find that Starfish's efforts
warrant a good faith reduction of the proposed forfeiture amount and
we reduce the proposed forfeiture from $5,000 to $4,000. Because
Starfish operated the fixed satellite earth station without a license,
as required by the Act and our Rules, we decline to cancel the
forfeiture.
12. Starfish also argues that it relied on outside entities and
contractors to complete the license process. While we do not dispute
this statement, we find that it does not support a reduction on the
forfeiture amount. The Commission has long held that licensees and
other Commission regulatees are responsible for the acts and omissions
of their employees and independent contractors, and has "consistently
refused to excuse licensees from forfeiture penalties where actions of
employees or independent contractors have resulted in violations."
13. Starfish also asks that the forfeiture amount be reduced or cancelled
because of Starfish's inability to pay. To support this claim,
Starfish, which was in existence for less than a year prior to the
issuance of the NAL, supplies records concerning its revenues,
expenses, assets, liabilities and equity. Generally, when analyzing a
financial hardship claim, the Commission has looked to gross revenues
as a reasonable and appropriate yardstick in determining whether a
licensee is able to pay the assessed forfeiture. However, when a
licensee has been in operation for such a brief period of time, the
Commission has determined that it is necessary to look at other
factors other than gross revenues to determine ability to pay a
proposed forfeiture. The Commission has required licensees to supply
information regarding what resources are available to the licensee
other than revenue including, but not limited to, lines of credit and
liquid assets. We have reviewed the documentation by Starfish, and
looked at the totality of Starfish's particular financial
circumstances, in evaluating its inability to pay claim. Taking into
account this information, including Starfish's stated revenues, we are
satisfied that the data demonstrates that Starfish does not have
access to the resources necessary to pay the full proposed forfeiture
amount. While we find that Starfish willfully and repeatedly violated
Section 301 of the Act and Section 25.102(a) of the Rules, based upon
its inability to pay, we conclude that pursuant to Section 503(b) of
the Act and the Forfeiture Policy Statement, reduction of the $4,000
forfeiture to $1,100 is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, The Starfish
Television Network, IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $1,100 for willfully and repeatedly violating Section 301 of the
Act and Section 25.102(a) of the Rules.
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to The Starfish
Television Network, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832800006
(Enf. Bur., Western Region, Denver Office, released July 31, 2008).
Starfish requested and received an extension of time to file its Response
from the Denver Office,
3700 - 4200 and 5925 - 6425 MHz bands.
Measurements were made using the Agilent E4440A, PSA Series Spectrum
Analyzer, 3 Hz - 26.5 GHz and Antenna Research, DRG-118/A, 1-18 GHz, Horn
Antenna.
Measurements were made using the Agilent E4440A, PSA Series Spectrum
Analyzer, 3 Hz - 26.5 GHz and Antenna Research, DRG-118/A, 1-18 GHz, Horn
Antenna.
In the FCC Public Notice, Satellite Radio Applications Services, Report
No. SES-01030, dated May 7, 2008, The Starfish Television Network is found
on page 3 of 8 with a reference number of SES-LIC-20080428-00496. The
application requests a frequency band of 6165 - 6425 MHz and emission of
3M00G7W for the location at 6952 Hightech Drive, Suite C, Midvale, UT,
with coordinates of 40-o 37' 30.90" north latitude, 111-o 53' 53.40" west
longitude.
FCC Public Notice, Satellite Radio Applications Services, Report No.
SES-01041, dated June 11, 2008
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301, 47 C.F.R. S: 25.102(a).
See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003).
See Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863 - 64 (2002).
See American Paging, Inc. of Virginia, 12 FCC Rcd 10417, 10420 (Wireless
Bur., Enf. and Cons. Inf. Div., 1997) (quoting Triad Broadcasting Company,
Inc., 96 FCC 2d 1235 (1984)).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
A-O Broadcasting Corporation, 31 Comm. Reg (P&F) 411 (2003) at para. 24.
Id.
SM Radio, Inc., 23 FCC Rcd 2429, 2432 (2008); Radio X Broadcasting
Corporation, 21 FCC Rcd 12209, 12216 (2006).
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),
25.102(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1540
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Federal Communications Commission DA 09-1540