Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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

   1

   1

   Federal Communications Commission DA 09-1540