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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Princess K Fishing Corporation )
Licensee of Ship Radio Station ) File Number: EB-08-HL-0044
WDB8248
) NAL/Acct. No.: 200832860001
Fishing Vessel PRINCESS K
) FRN: 0011032422
Honolulu, Hawaii
)
Documentation # 511130
))
FORFEITURE ORDER
Adopted: February 25, 2009 Released: February 27, 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 five thousand, five hundred dollars ($5,500) to Princess
K Fishing Corporation, licensee of ship radio station WDB8248, in
Honolulu, Hawaii, for willful and repeated violation of Section
80.89(a) of the Commission's Rules ("Rules"). On May 29, 2008, the
Enforcement Bureau's Honolulu Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") to Princess K Fishing Corporation in
the amount of $8,000 for falsely activating an Emergency Position
Indicating Radio Beacon ("EPIRB"), thereby engaging in superfluous
communications resulting in the transmission of false distress
communications. In this Order, we consider Princess K Fishing
Corporation's arguments that it did not willfully or repeatedly
violate Section 80.89(a) of the Rules, that it is not liable for the
acts of one of its employees, and that it lacks the ability to pay the
forfeiture.
II. BACKGROUND
2. On February 26, 2008, the Enforcement Bureau's Honolulu Resident Agent
Office received a violation report ("USCG Report") from the U. S.
Coast Guard Fourteenth District Command Center ("D14CC"). The USCG
Report detailed that on February 25, 2008, the DC14CC was notified of
an active 406.025 MHz EPIRB in their area of responsibility via the
Search and Rescue Satellite ("SARSAT") system. The D14CC determined
that the EPIRB was registered to the fishing vessel PRINCESS K, home
ported in Honolulu, Hawaii. Princess K Fishing Corporation is the
owner of the fishing vessel PRINCESS K, and the licensee of ship radio
station WDB8248, in Honolulu, Hawaii. The SARSAT fix located the EPIRB
to open seas approximately 150 nautical miles north by northeast of
Oahu, Hawaii. USCG D14CC efforts to contact the fishing vessel
PRINCESS K, which had five people aboard, including an executive of
the Princess K Fishing Corporation, through urgent broadcasts on
several HF frequencies, were unavailing. In accordance with their
protocol, the D14CC launched an HC-130 aircraft from Barber's Point
Air Station, Hawaii. The aircraft located the fishing vessel PRINCESS
K approximately 18 nautical miles away from where the EPIRB had been
located. Upon contacting the fishing vessel on the VHF marine channel
16, after a low pass, the master of fishing vessel PRINCESS K stated
that they had thrown the old EPIRB (the one detected by the SARSAT
system) overboard because they had purchased and installed a new one.
There was no actual distress.
3. The USCG reported the false activation by the fishing vessel PRINCESS
K to the Honolulu Office. According to the USCG Report, the D14CC
expended 3.5 fixed wing aircraft hours and 6 Command Center hours at a
cost of over $35,000 to determine that this was a false alert. The
D14CC also reported to the Honolulu Office that the old EPIRB was not
retrieved and continued transmitting until March 1, 2008, potentially
masking an actual search and rescue alert.
4. On March 26, 2008, when the fishing vessel PRINCESS K was back in port
in Honolulu, agents from the Honolulu Office, along with Coast Guard
personnel, interviewed the Princess K Fishing Corporation executive
who was onboard the fishing vessel PRINCESS K during the incident
detailed in the USCG Report. The Princess K Fishing Corporation
executive stated that a new EPIRB was purchased on Oahu and installed
while they were ported in Hilo, Hawaii. The executive stated that he
did not have time to return the old EPIRB, so he placed it in a
plastic bag and put it in storage on the vessel. Later while at sea,
he advised a crew member to take care of the bag and the crew member
threw it overboard, thereby activating the unit. The executive stated
that he did not realize this incident occurred until the Coast Guard
aircraft, while hovering over his vessel, contacted him during their
search. He explained that he was not able to retrieve the old EPIRB
even though Coast Guard advised that the EPIRB was still continuing to
transmit.
5. On May 29, 2008, the Honolulu Resident Agent Office issued a NAL in
the amount of $8,000 to the Princess K Fishing Corporation. In the
NAL, the Honolulu Office found that the Princess K Fishing Corporation
apparently willfully and repeatedly violated Section 80.89(a) of the
Rules, by engaging in superfluous radio communications resulting in
the transmission of false distress communications. Princess K Fishing
Corporation filed a response ("Response") to the NAL on June 27, 2008.
In its Response, Princess K Fishing Corporation argues it did not
willfully or repeatedly violate Section 80.89(a) of the Rules, that it
was not responsible for the acts of its employee, and that it lacks
the ability to pay the forfeiture.
III. DISCUSSION
6. 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. In examining
the 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.
7. Section 80.89(a) of the Rules states that "stations must not engage in
superfluous radio communication." An EPIRB station is "a station in
the maritime mobile service the emissions of which are intended to
facilitate search and rescue operations." A distress alert, such as
one from an EPIRB, is considered false "if it was transmitted without
any indication that a mobile unit or person was in distress and
required immediate assistance." The Rules require that "[i]f for any
reason an EPIRB is activated inadvertently [the licensee shall]
immediately contact the nearest U.S. Coast Guard unit or appropriate
rescue coordination center by telephone, radio or ship earth station
and cancel the distress alert."
8. False activations of EPIRBs and other emergency locating devices, such
as emergency locator transmitters ("ELTs") have the potential to
severely impact the search and rescue network, resulting in responder
resources being wasted and misdirected. Air searches for false EPIRB
and ELT activations cost the Coast Guard thousands of dollars per
search hour, as demonstrated by the USCG Report. Additional costs are
incurred by rescue coordination centers, support personnel, and ground
search and rescue responders. False activations also can cause harmful
interference to the SARSAT system and to airplanes and vessels in the
vicinity of the signal. Additionally, a false activation may conceal
or prevent timely response to a legitimate distress signal. On
February 25, 2008, Princess K Fishing Corporation's fishing vessel
PRINCESS K activated an EPIRB by dumping it off the fishing vessel and
into the ocean 150 nautical miles north by northeast of Oahu, Hawaii.
The transmissions emanating from this EPIRB caused the U.S. Coast
Guard to expend valuable resources to locate the fishing vessel
PRINCESS K only to find that there was no emergency and that the EPIRB
station was engaging in superfluous communications caused by the
actions of those onboard the fishing vessel PRINCESS K, including an
executive of the Princess K Fishing Corporation. Additionally, the
fishing vessel PRINCESS K took no action to contact the Coast Guard
concerning this false distress alert.
9. In its Response, Princess K Fishing Corporation argues that it did not
act willfully or repeatedly under Section 503(b) of the Act because
the Honolulu Office incorrectly applied the definitions from Section
312(f) of the Act to the terms "willful" and "repeated." Princess K
Fishing Corporation asserts that the definitions of the words
"willful" and "repeated" found in Section 312 of the Act, as detailed
in the NAL, apply only within Section 312 , that they should not be
used when interpreting Section 503 and, consequently, that the
Honolulu Office should have used the plain meaning of those terms when
assessing liability in the NAL. In particular, Princess K Fishing
Corporation argues that a finding of willfulness under Section 503
requires a finding of mens rea. We disagree. Section 312(f)(1) of the
Act defines "willful" as "the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to violate" the law.
In other words, there is no requirement of mens rea. The legislative
history of Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
Section 312(f)(2) of the Act provides that "[t]he term `repeated,'...
means the commission or omission of such act more than once or, if
such commission or omission is continuous, for more than one day." The
Commission has determined that the definition of "repeated" in Section
312(f) also applies to forfeitures assessed pursuant to Section 503(b)
of the Act. Consequently, we find no error in the Honolulu Office's
use of these definitions to assess liability to Princess K Fishing
Corporation in the NAL.
10. Princess K Fishing Corporation also argues that even if the Section
312 definition of willful applies, Princess K Fishing Corporation and
its employees did not deliberately generate the false alarm. As
indicated above, the definition of willful does not require an intent
to violate the law. The conscious and deliberate act in this case was
the disposal of the EPIRB into the ocean, which resulted in continual
false alarms from February 25, 2008 until March 1, 2008.
11. Princess K Fishing Corporation asserts that the crew member who
disposed of the EPIRB did not know what an EPIRB was and did not
understand that disposing of the EPIRB in that manner would result in
the false alarms. Because these actions were outside the scope of this
crew member's duties, Princess K Fishing Corporation argues that it
cannot be held liable for the crew member's actions. We disagree. 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." In
the instant case, according to the Response, the crew member was
acting on what he understood his orders were from an executive of the
PRINCESS K. Unfortunately, the crew member misunderstood his orders,
due to a language barrier between the crew member and the executive,
and disposed of the EPIRB as described. This misunderstanding,
however, does not excuse the Princess K Fishing Corporation of
responsibility for the acts of this crew member which were performed,
however incorrectly, in response to directives from the PRINCESS K
executive.
12. Princess K Fishing Corporation also argues that it does not have the
ability to pay the proposed forfeiture amount. To support this claim,
Princess K Fishing Corporation supplied its federal tax returns for
the three years prior to the NAL. In analyzing a financial hardship
claim, the Commission generally has looked to gross revenues as a
reasonable and appropriate yardstick in determining whether a licensee
is able to pay the assessed forfeiture. We have reviewed the data
supplied by Princess K Fishing Corporation and we conclude that
reduction of the forfeiture from $8,000 to $5,500 is warranted.
13. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Princess K
Fishing Corporation willfully and repeatedly violated Section 80.89(a)
of the Rules. Considering the entire record and the factors listed
above, we find that reduction of the proposed forfeiture to $5,500 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, Princess K Fishing
Corporation, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$5,500 for willfully and repeatedly violating Section 80.89(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.
Princess K Fishing Corporation shall also send electronic notification
on the date said payment is made to WR-Response@fcc.gov.
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 Princess K
Fishing Corporation, at its address of record, and Charles S. Lotsof,
Esquire, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 80.89(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832860001
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released May
29, 2008).
47 C.F.R.. S: 80.89(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 C.F.R. S: 80.89(a).
47 C.F.R. S: 80.5.
47 C.F.R. S: 80.334.
47 C.F.R. S: 80.335(e).
See 47 C.F.R. S:S: 87.193 - 87.199.
See, e.g., Grant Lam, 22 FCC Rcd 6341 (EB 2007); AMERI-KING Corporation,
23 FCC Rcd 2616 (EB 2008); Compatible Electronics, 23 FCC Rcd 2621 (EB
2008).
NAL at para. 5.
Mens rea is defined "[a]s an element of criminal responsibility: a guilty
mind; a guilty or wrongful purpose; a criminal intent." Black's Law
Dictionary 985 (6th Ed. 1990).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("Southern
California").
47 U.S.C. S: 312(f)(2).
See Callais Cablevision, Inc., Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern California, 6 FCC Rcd
at 4388.
Because we find that the Section 312 definitions apply to penalties
assessed under Section 503, and because we find that the Honolulu Office
correctly applied these definitions, we find no merit to Princess K
Fishing Corporation's argument that there is no basis for a forfeiture
imposed under Section 503 in this case.
Princess K Fishing Corporation also asserts that the term "repeatedly"
does not apply because there were not repeated false alarms. As described
above and in the NAL, the Coast Guard did receive multiple false distress
signals, over the course of several days, from the EPIRB that was disposed
of by the PRINCESS K vessel.
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).
See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive
where it represented approximately 2.02 percent of the violator's gross
revenues).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 80.89(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-438
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Federal Communications Commission DA 09-438