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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-SE-555
SES Americom, Inc. ) NAL/Acct. No. 200932100049
Licensee of Satcom C-3 Satellite ) FRN 0009827494
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 27, 2009 Released: March 3, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find SES
Americom, Inc. ("SES"), licensee of the Satcom C-3 geostationary
C-band satellite, call sign S2447, apparently liable for a forfeiture
in the amount of twelve thousand eight hundred dollars ($12,800) for
operating the Satcom C-3 satellite without Commission authority, in
apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act") and Section 25.102 of
the Commission's Rules ("Rules"), and for its willful violation in
failing to timely file the required modification application to extend
the term of the license pursuant to Section 25.117 of the Rules.
II. background
2. On August 25, 1989, SES was granted a license to operate the Satcom
C-3 satellite. Under the terms of its license, SES's authorization for
the satellite expired on December 16, 2007. Thereafter, on March 10,
2008, SES became aware that it had failed to file a modification to
extend the terms of its license for the Satcom C-3 satellite and that
its license had expired. On March 11, 2008, SES filed an application
with the International Bureau requesting special temporary authority
("STA") to operate the Satcom C-3 satellite beyond its license
expiration, and followed that request by filing, on March 18, 2008, a
modification application which, among other things, would extend the
station authorization until December 31, 2010. The modification
application was granted by the International Bureau on June 11, 2008.
3. Because it appeared that SES may have operated the Satcom C-3
satellite after the expiration of its license, the International
Bureau referred this case to the Enforcement Bureau for investigation
and possible enforcement action. On August 4, 2008, the Enforcement
Bureau's Spectrum Enforcement Division ("Division") issued SES a
letter of inquiry ("LOI") to further investigate whether SES operated
the Satcom C-3 satellite beyond expiration of its license.
4. In its September 3, 2008 response to the LOI, SES admitted that it did
not file the necessary modification to extend the term of its Satcom
C-3 satellite license and continued to operate the satellite without
Commission authority through March 11, 2008, the date of its STA
request, because it was unaware that its license had expired. SES
stated that it first became aware that its license had expired on
March 10, 2008, at which time it took immediate steps to request an
STA to operate the satellite, pending the submission and grant of an
application to modify the expiration date contained in the expired
authorization. SES states that between the dates of December 16, 2007
and March 18, 2008, it only communicated with the space station for
purposes of Telemetry, Tracking, and Command (TT&C), which, it states,
are administrative communications for the purpose of preventing the
satellite from drifting and thereby creating a risk of interference or
other technical harm to nearby spacecraft or the public.
III. discussion
1. 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 a satellite station except under and in
accordance with a Commission granted authorization. In order for an
operator to extend the terms of its space station license, it must
file an application for modification under Section 25.117 of the
Rules. Absent a timely filed application to extend the authorization,
a satellite station license automatically terminates at the end of the
license period.
5. Under the terms of its licenses, SES's authorization to operate the
Satcom C-3 expired on December 16, 2007. As a Commission licensee, SES
is charged with the responsibility of knowing and complying with the
terms of its authorizations, the Act and the Rules. SES admitted that
it failed to file an application to extend the satellite's license
prior to its expiration date. Moreover, SES admitted that it continued
to operate the Satcom C-3 satellite after the expiration of its
license, a situation that SES did not seek to remedy until March 11,
2008, when SES filed its request for STA. Thus, it appears that SES
apparently violated Section 301 of the Act and Section 25.102(a) of
the Rules by operating the Satcom C-3 satellite without Commission
authority, and that SES apparently violated the requirement to file a
modification application to extend the license pursuant to Section
25.117 of the Rules.
6. 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 SES's violation of Section 301 of the Act and
Sections 25.102(a) of the Rules was willful and repeated, and its
violation for the failure to timely file the required modification
application to extend the license pursuant to Section 25.117 was
willful.
7. 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." Having considered the statutory factors, as explained below,
we propose a total forfeiture of $16,000.
8. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and $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 for authority to extend its operations
constitute separate violations of the Act and the rules and warrant
the assessment of separate forfeitures. Accordingly, we herein propose
separate forfeiture amounts for SES's separate violations.
2. Consistent with recent precedent, we propose the full base forfeiture
amount of $3,000 for SES's failure to timely file the required
modification application pursuant to Section 25.117 to extend the
license for the Satcom C-3 satellite. Additionally, we propose a
forfeiture in the amount of $5,000 for SES's unauthorized operation of
the Satcom C-3 satellite for the three-month period between December
16, 2007, the license's expiration, and March 17, 2008, the date of
the STA request. In proposing a forfeiture of $5,000 for the
unauthorized operation, 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 adjusts the $10,000 base forfeiture amount accordingly. The
aggregate $8,000 base forfeiture amount is subject to adjustment,
however. In this regard, we consider SES's size and ability to pay a
forfeiture. To ensure that forfeiture liability is a deterrent, and
not simply a cost of doing business, the Commission has determined
that large or highly profitable companies, such as SES, could expect
the assessment of higher forfeitures for violations. Given SES's size
and ability to pay a forfeiture, we conclude that a significant upward
adjustment of the aggregate base forfeiture amount to $16,000 is
appropriate. Thus, we propose an aggregate forfeiture of $16,000.
9. We further find, however, that a downward adjustment of the proposed
forfeiture from $16,000 to $12,800 is warranted because SES made
voluntary disclosures to Commission staff and undertook corrective
measures after learning of its violations prior to any Commission
inquiry or initiation of enforcement action.
IV. ORDERING CLAUSES
10. 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, SES Americom, Inc. IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand eight hundred dollars ($12,800) for the
willful and repeated violation of Section 301 of the Act and Section
25.102(a) of the Rules and for the willful violation of the
requirement to timely file a modification application to extend the
terms of its license pursuant to Section 25.117 of the Rules.
11. 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, SES Americom, Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. 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. SES will also send electronic
notification on the date said payment is made to
Ricardo.Durham@fcc.gov and Susan.Stickley@fcc.gov.
13. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
14. 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.
3. 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 Ms. Nancy J.
Eskenazi, Vice President and Associate General Counsel, SES Americom,
Inc., Four Research Way, Princeton, New Jersey 08540, and a copy to its
counsel, Karis A. Hastings, Esq., Hogan & Hartson L.L.P., Washington, D.C.
2004-1109.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301; 47 C.F.R. S: 25.102.
47 C.F.R. S: 25.117.
See File No. SAT-LOA-19880930-00038.
SAT-STA-20080311-00062; application dismissed as moot June 11, 2008.
See Application of SES Americom, Inc., filed March 18, 2008 (File No.
SAT-MOD-20080318-00073).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Nancy J.
Eskenazi, Vice President and Associate General Counsel (August 4, 2008).
Letter from Ms. Nancy J. Eskenazi, Vice President and Associate General
Counsel, SES Americom, Inc., to Susan M. Stickley, Esq., Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (September 3, 2008).
Id at 1.
Id at 1-2.
Id at 1.
Id at 2.
47 U.S.C. S: 301; 47 C.F.R. S: 25.102(a).
47 C.F.R. S: 25.117.
47 C.F.R. S: 25.161.
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7437 (2004) ("Discussion Radio"). See
also Side By Side, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 898, 901 (Enf. Bur., Spectrum Enf. Div. 2008) ("Side By Side"); La
Carpa Corp., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 2744,
2746 (Enf. Bur., Spectrum Enf. Div. 2007) (forfeiture paid) ("La Carpa");
Shared Data Networks, LLC, Notice of Apparent Liability for Forfeiture, 20
FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div. 2005) (forfeiture
paid) ("Shared Data Networks").
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; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 91997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 C.F.R. S: 1.80(b).
See Discussion Radio, 19 FCC Rcd at 7438. See also Side By Side, 23 FCC
Rcd at 898; La Carpa, 22 FCC Rcd at 2745; Lazer Broadcasting Corp., Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur.,
Spectrum Enf. Div. 2005) (forfeiture paid) ("Lazer"); Shared Data
Networks, 20 FCC Rcd at 18186.
See e.g., 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).
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), prohibits assessment
of a forfeiture for a violation that occurred more than one year before
the issuance of a NAL, but this section does not bar consideration of
prior conduct in determining the appropriate forfeiture amount for
violations that occurred within the one-year statutory period. See
Globcom, Inc., d/b/a Globcom Global Communications, Notice of Apparent
Liability for Forfeiture and Order, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
against a broadcaster for operating its broadcast station beyond the
expiration of its license); Side by Side, 23 FCC Rcd at 900 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license); La Carpa, 22 FCC Rcd at 2746 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license); Lazer, 21 FCC Rcd at 8712 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license).
SES recently reported that its recurring revenue rose six percent in 2008
to $2.1 billion. See International Telecom, Communications Daily, February
17, 2009, at 8.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Walgreen Co., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
16,045, 16,048 (Enf. Bur., Spectrum Enf. Div. 2007) (forfeiture paid).
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur. 2004). See also Side By Side, 23 FCC Rcd at 901;
Lazer, 21 FCC Rcd at 8712; Journal Broadcasting Corp., Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum
Enf. Div. 2005) (forfeiture paid).
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.
Federal Communications Commission DA 09-479
2
Federal Communications Commission DA 09-479