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 No. EB-08-SE-543       
     Saga Radio Networks, LLC                                                
                                             )   NAL/Acct. No. 200832100063  
     Satellite Earth Station call sign                                       
     E872070                                 )   FRN: 0009112400             
                                                                             
                                             )                               


   FORFEITURE ORDER

   Adopted: March 30, 2009 Released: April 1, 2009

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of five thousand two hundred dollars ($5,200) against Saga
       Radio Networks, LLC ("Saga") for the willful and repeated violation of
       Section 301 of the Communications Act of 1934 ("Act"), as amended and
       Section 25.102(a) of the Commission's Rules ("Rules"), and for the
       willful violation of Section 25.121(e) of the Rules. The noted
       violations involve Saga's operation of its earth station without
       Commission authority, and its failure to file a timely renewal
       application.

   II. BACKGROUND

    2. On August 28, 2007, Saga was granted a license to operate a Ku-band
       fixed satellite earth station under call sign E872070. Under the terms
       of its license, Saga's authorization for its earth station expired on
       August 28, 2007. On May 14, 2008, Saga became aware that the license
       for its earth station had expired. On May 28, 2008, Saga filed a
       request with the International Bureau ("IB") requesting special
       temporary authority ("STA")  to operate the earth station pending
       grant of an application for a new earth station license. On June 13,
       2008, Saga submitted a new license application, and on July 29, 2008,
       the IB granted Saga a new license for earth station E872070 and
       dismissed the STA request as moot.

    3. Because it appeared that Saga may have operated its earth station
       without authority after the expiration of its license, the IB referred
       this case to the Enforcement Bureau for investigation and possible
       enforcement action. On June 11, 2008, the Enforcement Bureau's
       Spectrum Enforcement Division ("Division") issued a letter of inquiry
       ("LOI") to Saga.

    4. In its July 11, 2008 response to the LOI, Saga states that it first
       became aware on May 14, 2008 that its license for earth station
       E872070 had expired. On this date, Saga's Business Manager discovered
       the expired license during a review of Saga's authorizations database.
       The Business Manager, upon realizing the error, immediately notified
       Saga's Director of Engineering who, in turn, promptly contacted the
       appropriate parties to remedy the situation. In addition, Saga
       acknowledges that it operated earth station E872070 without authority
       after August 28, 2007.

    5. On July 30, 2008, the Division released a Notice of Apparent Liability
       for Forfeiture ("NAL"), finding that Saga operated its earth station
       without Commission authority and in apparent willful and repeated
       violation of Section 301 of the Act and Sections 25.102(a) and
       25.121(e) of the Rules. The NAL proposed a forfeiture amount of five
       thousand two hundred dollars ($5,200) for the apparent violations.

    6. On August 27, 2008, the Division received Saga's response to the NAL.
       In response to the NAL, Saga does not dispute that it failed to file a
       timely renewal application, and additionally does not dispute that it
       operated earth station E872070 without a license. Instead, Saga argues
       that its failure to file a timely renewal application was neither
       willful nor repeated, and that imposing a forfeiture would be
       inconsistent with actions previously taken by the Commission. In
       addition, Saga argues that imposing the proposed forfeiture for
       operation of its earth station without a license would be contrary to
       the public interest. Saga argues that these reasons warrant a
       cancellation or reduction of the proposed forfeiture.

   III. Discussion

    7. The forfeiture amount proposed 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. In assessing forfeitures,
       Section 503(b)(2)(E) of the Act requires that we 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 such other matters as justice may
       require.

    8. Section 301 of the Act provides that "[n]o person shall use or operate
       any apparatus for the transmission of energy or communications or
       signals by radio ... except under and in accordance with this Act and
       with a license in that behalf granted under the provisions of this
       Act." Section 25.102(a) of the Rules prohibits the use or operation of
       an apparatus for the transmission of communications by earth stations
       without appropriate authorization from the Commission. Section
       25.121(e) of the Rules requires that applications for the renewal of
       earth station licenses must be submitted to the Commission no earlier
       than 90 days, and no later than 30 days, prior to the expiration date
       of the license.

    9. In response to the NAL, Saga does not dispute that it violated Section
       301 of the Act and Sections 25.102(a) and 25.121(e) of the Rules when
       it failed to file a timely renewal application, and when it operated
       earth station E872070 after its license expired on August 28, 2007.
       Saga argues, however, that its failure to renew its license was not
       willful or repeated, that imposing a forfeiture for its failure to
       file a timely renewal application is inconsistent with actions
       previously taken by the Commission, and that public policy bars the
       imposition of a forfeiture for Saga's operation of its earth station
       without Commission authority.

   10. Saga first argues that in order to impose a forfeiture for its failure
       to file a timely renewal application, the Commission should have to
       establish scienter as an element of the willfulness of its violation.
       We disagree. Section 312(f)(1) of the Act, provides that "the term
       `willful,' when used with reference to the commission or omission of
       any act, means the conscious or deliberate commission or omission of
       such act, irrespective of any intent to violate any provision of this
       Act or any rule or regulation of the Commission." Indeed, it is well
       established that, in the context of forfeiture actions, "willful" does
       not require a finding that the rule violation was intentional or that
       the violator was aware that it was committing a rule violation.
       Rather, the term "willful" simply requires that the violator knew it
       was taking or failing to take the action in question, irrespective of
       any intent to violate the Commission's rules.

   11. Saga also argues that the proposed forfeiture of one thousand five
       hundred dollars ($1,500) for its failure to file a timely renewal
       application is inconsistent with other actions in which the Media
       Bureau proposed or assessed forfeitures of two hundred and fifty
       dollars ($250) for closely-related conduct. Specifically, Saga cites
       several NALs and Forfeiture Orders issued by the Media Bureau for
       violation of Section 73.3539 of the Rules. The cases cited by Saga
       are, however, distinguishable from the instant case because in each of
       those cases, the renewal application was filed late, but prior to the
       expiration of the license term. In contrast, Saga filed its STA more
       than nine months after its license expired.

   12. Saga further argues that the proposed $5,000 forfeiture for its
       unauthorized operation of the earth station should be cancelled on
       public interest grounds. According to Saga, in its response to the
       LOI, it demonstrated that it was critical both to Saga's business, and
       to the members of the public who listen to Saga radio stations in
       Michigan, Illinois, Ohio, Missouri and Ontario, Canada, that its earth
       station be permitted to continue to operate. The fact that the earth
       station was critical to Saga's business does not, however, justify its
       operation beyond the expiration of its license, nor is it a mitigating
       factor warranting reduction or cancellation of the proposed
       forfeiture.

   13. Accordingly, we conclude that Saga willfully and repeatedly violated
       Section 301 of the Act and Section 25.102(a) of the Rules and
       willfully violated Section 25.121(e) of the Rules and find that no
       mitigating factors have been presented that warrant cancellation or
       reduction of the proposed $5,200 forfeiture.

   IV. ORDERING CLAUSES

   14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Saga Radio
       Networks, LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       five thousand two hundred dollars ($5,200) for willful and repeated
       violation of Section 301 of the Act and Section 25.102(a) of the Rules
       and willful violation of Section 25.121(e) of the Rules.

   15. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Commission's 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. Saga Radio Networks, LLC will also send
       electronic notification on the date said payment is made to Deborah
       Broderson at Deborah.Broderson@fcc.gov and to Ricardo Durham at
       Ricardo.Durham@fcc.gov.

   16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Gary S.
       Smithwick, Esq., Counsel for Saga Radio Networks, LLC, Smithwick &
       Belendiuk, P.C., 5028 Wisconsin Avenue, NW, Washington DC 20016, and
       to Mr. Gregory Urbiel, Saga Radio Networks, LLC, 73 Kercheval Avenue,
       Grosse Pointe Farms, MI 48236.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   47 U.S.C. S: 301.

   47 C.F.R. S:S: 25.102(a) and 25.121(e).

   See File No. SES-RWL-19970806-01078.

   Letter from Gary S. Smithwick, Esq., Counsel for Saga Radio Networks, LLC,
   to Zachary Rothstein, Spectrum Enforcement Division, Enforcement Bureau,
   Federal Communications Commission (July 11, 2008) ("LOI Response").

   See File No. SES-STA-20080528-00682.

   See File No. SES-LIC-20080613-00772.

   Letter from Kathryn Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission, to Mr. Gregory
   Urbiel, Saga Radio Networks, LLC (June 11, 2008).

   "LOI Response" at 1.

   Id. at 2.

   Id.

   Id.

   Saga Radio Networks, LLC, Notice of Apparent Liability for Forfeiture, 23
   FCC Rcd 11273 (Enf. Bur., Spectrum Enf. Div. 2008) ("NAL").

   Id. at 11275-76.

   Letter from Gary S. Smithwick, Esq., counsel for Saga Radio Networks, LLC,
   to Kathryn Berthot, Chief, Spectrum Enforcement Division, Enforcement
   Bureau, Federal Communications Commission (August 27, 2008) ("NAL
   Response").

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   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 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 301.

   See 47 C.F.R. S: 15.102(a).

   See 47 C.F.R. S: 25.121(e).

   47 U.S.C. S: 312(f)(1).

   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, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and the
   Commission has so interpreted the term in the Section 503(b) context. See
   Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
   Rcd 4387, 4387-88 (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("Southern
   California").

   See Southern California, 6 FCC Rcd  at 4387-88 (stating that "inadvertence
   ... is at best, ignorance of the law, which the Commission does not
   consider a mitigating circumstance" and applying the definitions of
   willful in Section 312(f)(1) to forfeiture cases). See also Abocom
   Systems, Inc., Memorandum Opinion and Order, 22 FCC Rcd 7448, 7451 (Enf.
   Bur. 2007) (rejecting Abocom's argument that it was only "inadvertently
   noncompliant" and that "its actions were not deliberate or intended to
   violate the rules"); Five Star Parking d/b/a Five Star Taxi Dispatch,
   Forfeiture Order, 23 FCC Rcd 2649, 2651-52 (Enf. Bur., Spectrum Enf. Div.
   2008) (declining to reduce or cancel forfeiture for late-filed renewal
   based on licensee's administrative error); Domtar Industries, Inc., Notice
   of Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815 (Enf. Bur.,
   Spectrum Enf. Div. 2006) ("Domtar Industries") (same); National Weather
   Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
   3922, 3925 (Enf. Bur., Spectrum Enf. Div. 2006) (same). As we find that
   Saga's failure to file was willful, we need not reach the issue here of
   whether its violation was also repeated.

   See Bible Broadcasting Network, Inc., 23 FCC Rcd 8743 (2008) ("Bible
   Broadcasting II"); Good News Translator Assoc., 22 FCC Rcd 20922 (Media
   Bur. 2007) ("Good News"); and Bible Broadcasting Network, Inc., 22 FCC Rcd
   11445 (Media Bur. 2007) ("Bible Broadcasting I").

   See Bible Broadcasting II, 23 FCC Rcd at 8743 (application filed more than
   two months prior to expiration date); Good News, 22 FCC Rcd at 20922-923
   (application filed two and one-half months prior to expiration); Bible
   Broadcasting I, 22 FCC Rcd at 11445 (application filed one day prior to
   expiration).

   See, e.g., Domtar Industries, 21 FCC Rcd at 13817 (rejecting a licensee's
   argument that a forfeiture for unauthorized operation was not appropriate
   because the operation of its private land mobile radio system was critical
   to the licensee's business).

   47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 504(a).

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 09-728

   1

   Federal Communications Commission DA 07-