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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-