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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
File Number: EB-04-SD-187
)
In the Matter of NAL/Acct. No.: 200532940005
)
Kojo Worldwide Corporation FRN: 0011163516
)
San Diego, California File Number: EB-05-SD-011
)
More Enterprises Communications NAL/Acct. No.: 200532940008
Network, Inc. )
FRN: 0010901734
San Diego, California )
File Number: EB-05-SD-010
Uniradio Corporation )
NAL/Acct. No.: 200532940013
San Diego, California )
FRN: 0010621829
Anderson Desk Company )
File Number: EB-05-SD-031
San Diego, California )
NAL/Acct. No.: 200532940002
)
FRN: 0009980855
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: December 29, 2009 Released: December 29, 2009
By the Commission:
I. INtroduction
1. The Commission has before it four applications for review filed by
Kojo Worldwide Corporation ("Kojo"), More Enterprises Communications
Network, Inc. ("More"), Uniradio Corporation ("Uniradio") and Anderson
Desk Company ("Anderson Desk") (collectively "the Petitioners") of
forfeiture orders ("Forfeiture Orders") issued by the Western Region,
Enforcement Bureau ("Region"). In the Forfeiture Orders, each of the
Petitioners was assessed a $10,000 forfeiture for willfully and
repeatedly operating an unlicensed microwave radio station, in
violation of Section 301 of the Communications Act of 1934, as amended
("Act"). All four of the applications for review raise the same
issues; therefore, we consider them together. For the reasons
described below, we deny the applications for review.
II. background
2. Beginning in November 2004, and continuing through March 2005, agents
from the San Diego Office of the Commission's Enforcement Bureau
investigated allegations that companies in the Otay Mesa area of San
Diego, California, were using unauthorized microwave radio stations to
communicate with sister companies across the U.S. - Mexico border in
Tijuana, Mexico. During that time, San Diego agents monitored and
measured the transmissions of a microwave radio station used by Kojo,
at 9654 Siempre Viva Road, San Diego, California, operating on
microwave channels 22355.0 MHz and 22471.75 MHz.; a microwave radio
station used by More, at 4630 Border Village Road, San Diego,
California, operating on microwave channels 21675.0 MHz and 22471.75
MHz; a microwave radio station used by Uniradio at 4630 Border Village
Road, San Diego, California, operating on microwave channels 21225.0
MHz and 22464.75 MHz; and a microwave radio station used by Anderson
Desk, at 7510 Airway Road, San Diego, California, operating on
microwave channel 21224.0 MHz. A review of the Commission's databases
revealed that each of the Petitioners had a pending application, all
filed in 2004, for a frequency within the 23 GHz band, but not
necessarily the one they were using. None of these applications had
been granted and, consequently, none of these operations were licensed
by the Commission.
3. The San Diego Office issued a Notice of Unlicensed Operation ("NOUO")
to Kojo on December 17, 2004. In a reply, dated December 27, 2004
("NOUO Reply"), the counsel for Kojo stated that Kojo attempted to
apply for a microwave radio station license in 2001. During this same
time period, Kojo's counsel had another client who attempted to apply
for a microwave radio station license in the same area in order to
communicate with a sister office in Mexico. According to Kojo's
counsel, this other client attempted to obtain a Special Temporary
Authority ("STA") but was not granted one. In the NOUO Reply, counsel
for Kojo stated that he was orally advised by the Commission's
International Bureau that "(1) it would not be issuing any more STA's,
and (2) there would be no further enforcement actions initiated by
field offices regarding unlicensed cross-border 23 GHz systems."
Kojo's counsel then stated that he gave this advice to Kojo as well.
Kojo apparently began its operations in 2001 on microwave channel
22355.0. Kojo filed three applications for licenses in 2001, all of
which were dismissed in 2001 for failure to pay the requisite filing
fee. Upon receiving the NOUO, Kojo stated that it ceased operation of
the microwave radio station in question and filed for an STA to allow
its operation. On March 24, 2005, and on August 9, 2005, San Diego
agents returned to the Kojo site and found the microwave radio station
operational but now on microwave channel 22471.75 MHz.
4. The San Diego Office also sent Letters of Inquiry ("LOI's") to More,
Uniradio and Anderson Desk concerning their authority to transmit on
the frequencies and at the locations listed above. Each of the
entities responded. More acknowledged in its reply, received April 8,
2005, that it began operating its microwave radio station in 2004 on
21675.0 MHz and that it had a license application pending with the
Commission. According to Commission records, the application was filed
September 2, 2004. In its reply received April 19, 2005, Uniradio
acknowledged that it began operating the station on 21225.0 MHz in May
2004 and that it never had or applied for an authorization or license
to transmit in the U.S. at the 21225.0 MHz frequency. Uniradio further
acknowledged that it had a pending application to use 22464.75 MHz.
According to Commission records, this application was filed on May 19,
2004, and amended September 29, 2004, still indicating its desire to
use 22464.75 MHz. Uniradio also indicated that the equipment company
that installed the radio transmitter had inadvertently switched the
receiver and transmitter frequencies, leaving the station operating at
21225.0 MHz rather than at 22464.75 MHz. In its reply, received March
23, 2005, Anderson Desk acknowledged that it began operating its
microwave radio station in 2000 on frequency 22461.25 MHz. There is no
evidence that Anderson Desk filed an application to operate at that
time. Anderson Desk stated that it replaced some defective equipment
in December 2004 and, at that time, frequency 21224.0 MHz was
installed. Anderson Desk further stated in response to the LOI that
the repaired unit was back in service and operating on 22461.25.
According to Commission records, Anderson Desk filed an application on
September 23, 2004, to operate on 22461.25 MHz. Anderson Desk
acknowledged that its pending application for license had not yet been
granted at the time it commenced operations.
5. 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 [within the United States] ... except under and in
accordance with this Act and with a license in that behalf granted
under the provisions of this Act." On September 28, 2005, the San
Diego Office issued a Notice of Apparent Liability for Forfeiture
("NAL") to each of the Petitioners in the amount of $10,000 for
willfully and repeatedly operating a microwave radio station without a
license in violation of Section 301 of the Act. Each of the
Petitioners responded to its NAL. In their responses, none of the
Petitioners claimed that it held a valid authorization to operate a
microwave station during the 2004 and 2005 time period that the San
Diego Office conducted its investigation, and none of the Petitioners
denied operating its microwave radio station repeatedly without a
license. Additionally, none of the Petitioners discussed the
applications that they had filed in 2004, or why they were filed. None
addressed whether they had filed an application in 2000 or 2001.
Instead, all the Petitioners argued that they should not be liable for
the proposed forfeitures because they were relying on oral advice
given to their counsel by Commission staff in 2001, concerning other
similarly situated microwave radio operators. Uniradio also argued
that the Commission should have issued a public notice announcing its
intention to enforce Section 301 against cross-border operators in
2005 and by not doing so it "placed Uniradio in [a] `Catch-22'
situation by refusing for years to issue STAs or licenses for
microwave links in the 23 GHz band and [indicating] that it would not
undertake enforcement actions."
6. In the Forfeiture Orders, the Region found no merit to these arguments
and issued forfeitures of $10,000 against each of the Petitioners. The
Region reminded the Petitioners that the Commission had consistently
held that applicants are responsible for compliance with the
Commission's Rules and should not rely on informal oral opinions from
Commission staff. Consequently, the Region disagreed that Uniradio,
which commenced unlicensed 23 GHz operations in May of 2004, was
placed in a "Catch-22" by the lack of a public notice announcing that
the Commission would enforce Section 301 against unauthorized
cross-border microwave operators.
7. The Region also found that even assuming arguendo that Commission
staff did advise the Petitioners' counsel in 2001 that there would be
no further enforcement actions initiated by field offices regarding
unlicensed cross-border 23 GHz systems in 2001, the Petitioners'
continued reliance on this advice in 2004 and 2005 was misplaced.
While the Petitioners claimed that until 2005, the FCC's microwave
licensing branch had steadfastly refused to grant applications seeking
cross-border 23 GHz links because the licensing authority in Mexico
was not then issuing authorizations for parallel links from Mexico to
the U.S, the Region's review of the Commission's database showed
otherwise. The Region determined that, by January 2004, cross-border
coordination and licensing by both the FCC and the Mexican Ministry of
Communications and Transport ("SCT") was routinely occurring. The
Region also found that the fact that each of the Petitioners had filed
an application for authority to operate in 2004 indicated that each of
the Petitioners clearly understood that licensing was both required,
and available, for its cross-border operations in 2004 and 2005, the
period during which the San Diego Office agents observed and
questioned the Petitioners' unauthorized operations.
III. discussion
8. In their applications for review, Petitioners effectively repeat the
argument they made before the Region that forfeitures for unlicensed
operations during the years 2004 to 2005 are inappropriate because
petitioners were relying upon oral advice given to their counsel by
Commission staff in 2001 that there would be no further enforcement
actions for unlicensed cross-border 23 GHz systems. We find no merit
to this argument and affirm the Region's finding as to this issue. The
Commission has stated in the past that "[i]t is the obligation of
interested parties to ascertain facts from Official Commission records
and files and not rely on statements or informal opinions by the
staff." Additionally, "[w]hen the staff advice is contrary to the
Commission's rules, the Commission may still enforce its rules despite
any reliance by the public." Regulatees that rely on unwritten staff
opinions do so at their own peril. None of the staff has been given
delegated authority by the Commission to orally waive the requirements
of, or to promise indefinite non-enforcement of, Section 301 of the
Act.
9. At the outset, we observe that Petitioners' unlicensed operations were
clearly barred by federal statute and FCC rule. As indicated above,
Section 301 of the Communications Act requires a license for radio
operations: "No person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio [within
the United States] ... except under and in accordance with this Act
and with a license in that behalf granted under the provisions of this
Act." In addition, the Commission's rules require a license in order
to operate 23 GHz microwave radio systems. Moreover, Petitioners
cannot argue that their operations were authorized by rule as a result
of the pendency of their various license applications during a portion
of the period in question, because the rules providing for conditional
authorization (i.e., authority to operate a proposed station during
the pendency of a properly filed application) do not apply to the
operations at issue here. Finally, Petitioners have failed to cite any
statute, official FCC decision, order or policy that affirmatively
suspended the licensing requirement for operators of 23 GHz links
between the United States and Mexico.
10. In light of these clearly articulated requirements barring the type of
unlicensed station operations at issue here, coupled with a lack of
any evidence that Congress or the Commission had altered these
requirements, we find no merit in Petitioners' assertion that any of
the statements made by any member of the FCC staff was "tacitly
sanctioned" by the Commission. As for the suggestion that Petitioners
were entitled to rely on past instances in which Commission staff may
have failed to pursue enforcement action against other 23 GHz
operations near the Mexican border, we note, as a threshold matter,
that while the Commission is an administrative agency with broad
prosecutorial discretion, parties are not entitled to rely on an
expectation of the Commission's exercise of such discretion to justify
non-compliance with the Act or the Commission's rules. Moreover, even
if there were instances where the agency's unofficial actions might
mitigate such noncompliance, Petitioners' own description of their
understanding of the Commission's enforcement approach towards 23 GHz
operations demonstrates the complete lack of any reasonable basis for
relying on an expectation that the Commission would not enforce its
licensing requirement against them. Specifically, the NOUO issued to
Kojo on December 17, 2004, made it clear that the agency was not
exercising any discretion to forego enforcement action and put Kojo
and the rest of the Petitioners, who were relying on the same counsel
for their oral authority to operate without a license, on notice that
they would be prohibited from operating without a license.
Additionally, the circumstances under which Petitioners allege the
representations from the agency were made would suggest that any
reliance on them by Petitioners was unreasonable. According to
Petitioners' own claims, the alleged representations were made a
number of years before the subject operations here, as to parties
other than the Petitioners, and at a time when the asserted basis for
the lack of enforcement was an international impasse that had ceased
to exist during the 2004-2005 time period at issue here.
11. The Petitioners also argue that the person making the assurances was
the Deputy Bureau Chief of the International Bureau and, as such, was
a policy maker. The Petitioners, citing AAT Electronics Corporation,
assert that the Commission has implied in the past that the public may
rely on pronouncements of policy-making staff. Kojo, in particular,
asks if a Notice of Unlicensed Operation issued by a field office, in
this case the San Diego Office, is effective to countermand an
explicit policy announced by a deputy chief of the International
Bureau. The Petitioners argue that this Deputy Bureau Chief was
"clearly speaking for the Commission" and was articulating "a policy
that had been discussed and formulated at the highest levels of the
International Bureau." However, neither the International Bureau nor
the Commission can waive Section 301: this agency does not have the
authority to waive a statutory requirement. We also disagree with
Petitioners' reading of the AAT Electronics decision. That decision,
like ours here, rejected a petitioner's assertion that it was entitled
to rely on oral advice by Commission staff that conflicted with the
Commission's published rules. The Commission's passing observation in
AAT Electronics that the staff person in question, who purportedly
authorized a change in the construction and loading requirements, did
not have policy-making authority ("we note that the Bureau employee in
question was a staff attorney who did not have policy making
authority") only served to highlight the weakness of AAT's argument
(much as the next point made by the Commission in the case - that AAT
failed to cite the purported staff representation when it informed the
Commission that it was proceeding to construct in a manner contrary to
rule), not to recognize grounds for proving the receipt of an oral
waiver.
12. The Petitioners also argue that the Region was incorrect in finding
that the fact that each of the Petitioners had filed an application in
2004 to obtain a license for its unlicensed microwave operation meant
that each of the Petitioners "clearly understood" that licensing was
required. We find no merit to the Petitioners' argument. The
Petitioners do not explain why they filed applications in 2004, other
than the fact that they believed that at some point licensing would be
required. In this regard, they were partially correct, as Section 301
had always required that their cross-border 23 GHz operations be
licensed, whether the Petitioners clearly understood it or not, and
regardless of any oral statements made to their counsel or other
representatives.
13. We have examined the applications for review pursuant to the statutory
factors prescribed by Section 503(b)(2)(E) of the Act and in
conjunction with The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, and Section 1.80 of the Rules. Having done so, we find no
reason to reverse the Region's earlier decisions. Therefore, we deny
the applications for review of Kojo Worldwide Corporation, More
Enterprises Communications Network, Inc., Uniradio Corporation and
Anderson Desk Company, and affirm the Region's Forfeiture Orders
finding Kojo Worldwide Corporation, More Enterprises Communications
Network, Inc., Uniradio Corporation and Anderson Desk Company each
liable for a forfeiture in the amount of $10,000.
IV. ordering Clauses
14. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Rules, Kojo Worldwide Corporation's Application for Review of the
Region's August 25, 2006, Forfeiture Order IS DENIED and the Region's
Forfeiture Order IS AFFIRMED.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.115(g) of the Rules,
More Enterprises Communications Network, Inc.'s Application for Review
of the Region's August 25, 2006, Forfeiture Order IS DENIED and the
Region's Forfeiture Order IS AFFIRMED.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.115(g) of the Rules,
Uniradio Corporation's Application for Review of the Region's
September 12, 2006, Forfeiture Order IS DENIED and the Region's
Forfeiture Order IS AFFIRMED.
17. IT IS FURTHER ORDERED that, pursuant to Section 1.115(g) of the Rules,
Anderson Desk Company's Application for Review of the Region's August
25, 2006, Forfeiture Order IS DENIED and the Region's Forfeiture Order
IS AFFIRMED.
18. Payment of the forfeitures ordered by the Region and affirmed by this
Memorandum Opinion and Order 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.
19. IT IS FURTHER ORDERED that, a copy of this Order shall be sent by
Certified Mail Return Receipt Requested and by First Class Mail to
Kojo Worldwide Corporation, at its address of record, More Enterprises
Communications Network, Inc., at its address of record, Uniradio
Corporation, at its address of record, Anderson Desk Company, at its
address of record, and their counsel of record, Frederick J. Day,
Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Application for Review of Kojo Worldwide Corporation, filed September 22,
2006 ("Kojo Application for Review"); Application for Review of More
Enterprises Communications Network, Inc., filed September 22, 2006 ("More
Application for Review"); Application for Review of Uniradio Corporation,
filed October 12, 2006 ("Uniradio Application for Review"); Application
for Review of Anderson Desk Company, filed September 22, 2006 ("Anderson
Application for Review").
Kojo Worldwide Corporation, 21 FCC Rcd 9538 (EB 2006); More Enterprises
Communications Network, Inc., 21 FCC Rcd 9548 (EB 2006); Uniradio
Corporation, 21 FCC Rcd 9993 (EB 2006); Anderson Desk Company, 21 FCC Rcd
9543 (EB 2006).
47 U.S.C. S: 301.
Because the issues raised in these applications for review are identical,
we have consolidated our consideration of these issues and Petitioners
into this single Memorandum Opinion and Order. Each of the Petitioners,
however, remains liable only for its individual forfeiture amount, see
P:P: 14 - 23, below.
See, e.g., Lamkin Corporation, 21 FCC Rcd 9568 (EB 2006); Pacnet
Incorporated San Diego (Otay), California, 21 FCC Rcd 10089 (EB 2006),
Pacnet Incorporated San Diego (San Ysidro), California, 21 FCC Rcd 10087
(EB 2006); Norman Krieger 21 FCC Rcd 9563 (EB 2006); Pacific Spanish
Network, Inc, 21 FCC Rcd 2073 (EB 2006); International Customs Brokers,
Inc., 21 FCC Rcd 2077 (EB 2006); Tocabi America Corporation, Notice of
Apparent Liability for Forfeiture, NAL/Acct. No. 200532940006 (Enf. Bur.,
Western Region, San Diego Office, released September 28, 2005).
At the time of the inspections, Kojo had a pending application for
license, filed November 1, 2004, for operation on 22471.75 MHz for the
9654 Siempre Viva Road transmitter site; More had a pending application
for license, filed September 2, 2004, for 22471.75 MHz at the 4630 Border
Village Road location; Uniradio had a pending application for license,
filed May 19, 2004 and amended September 29, 2004, for 22464.75 MHz at the
4630 Border Village Road location; and Anderson Desk had a pending
application for license, filed September 23, 2004, for 22461.25 MHz at the
7510 Airway Road location. Pursuant to Sections 101.31(b)(1) and
101.31(b)(1)(v) of the Rules, 47 C.F.R. S:S: 101.31(b)(1),
101.31(b)(1)(v), certain applicants for point-to-point microwave stations,
not located within 56.3 kilometers of any international border, operating
in certain frequency bands, are deemed to have conditional authority to
operate their proposed stations during the pendency of their applications.
These rule provisions for conditional authority, however, do not apply to
the operations at issue here, as some of the frequencies proposed for use
by Petitioners in their applications were not contained in these frequency
bands, and each one of the proposed stations was located too close to an
international border (specifically, no more than 1.5 km from the Mexican
border) to qualify for conditional authority.
The other client was Pacific Devices, Inc. See Kojo NOUO Reply at 2.
Kojo Worldwide Corporation, 21 FCC Rcd at 9539, quoting the Kojo NOUO
Reply at 2. Neither Kojo nor its counsel presented any written Commission
or International Bureau orders, public notices or any other documentation
published by the Commission to support these statements.
All of the Petitioners contend that they relied on this advice given to
their counsel regarding unlicensed 23 GHz operations. Kojo Application for
Review at 3; More Application for Review at 3; Uniradio Application for
Review at 4; Anderson Application for Review at 3.
A review of Commission records by the San Diego Office revealed that Kojo
had no pending application and had not received authorization to operate
on microwave channel 22355.0 MHz.
See FCC File Nos. 000432307, 000477582 and 0000506891.
See Letter Request for Special Temporary Authority from Kojo Worldwide
Corporation to International Bureau, FCC, dated December 24, 2004. Kojo
provides no evidence that this request was ever granted.
The Commission's review of its records referenced above, see note 10
supra, also indicated that Kojo had a pending application, but no
authorization, to operate on microwave channel 22471.75 MHz. The pending
application was granted on August 18, 2005, under call sign WQDG466,
approximately four years after the unauthorized operations commenced. On
June 3, 2007, the WQDG466 license was terminated.
On August 17, 2005, the pending More Enterprises application for a Private
Operational Fixed Point-to-Point Microwave radio station on 22471.75 MHz,
located at 4630 Border Village Road, San Diego, California, was granted
under call sign WQDG363.
Uniradio also stated that it had applied to the FCC for a special
temporary authority and that it had corrected the transmitter frequency
error. Agents confirmed that Uniradio did apply for a special temporary
authority on March 22, 2005. The pending Uniradio application for a
Private Operational Fixed Point-to-Point Microwave radio station on
22464.75 MHz, located at 4630 Border Village Road, San Diego, California,
was granted on May 18, 2005 under call sign WQCT284, approximately one
year after the unauthorized operations commenced.
On May 20, 2005, Anderson's pending application for a Private Operational
Fixed Point-to-Point Microwave radio station on 22461.25 MHz was granted
under the call sign of WQCT534.
47 U.S.C. S: 301.
See Kojo Worldwide Corporation, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200532940005 (Enf. Bur., Western Region, San
Diego Office, released September 28, 2005); More Enterprises
Communications Network, Inc., Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200532940008 (Enf. Bur., Western Region, San Diego Office,
released September 28, 2005); Uniradio Corporation Notice of Apparent
Liability for Forfeiture, NAL/Acct. No. 200532940013 (Enf. Bur., Western
Region, San Diego Office, released September 28, 2005); and Anderson Desk
Company, Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532940002 (Enf. Bur., Western Region, San Diego Office, released
September 28, 2005).
Uniradio Reply at 4.
Kojo Forfeiture Order, 21 FCC Rcd at 9540, para. 12; More Forfeiture
Order, 21 FCC Rcd at 9550, para. 11; Uniradio Forfeiture Order, 21 FCC Rcd
at 9995, para. 11; Anderson Desk Forfeiture Order, 21 FCC Rcd at 9545,
para. 13 (collectively citing Texas Media Group, Inc. 5 FCC Rcd 2851, 2852
(1990), aff'd sub nom., Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C.
Cir. 1991).
Uniradio Forfeiture Order, 21 FCC Rcd at 9995, para. 11.
Kojo Forfeiture Order, 21 FCC Rcd at 9540, para. 12; More Forfeiture
Order, 21 FCC Rcd at 9550, para. 11; Uniradio Forfeiture Order, 21 FCC Rcd
at 9995, para. 12; Anderson Desk Forfeiture Order, 21 FCC Rcd at 9545,
para. 13.
Id.
Id.
Kojo Application for Review at 4 (filed Sept. 22, 2006); More Application
for Review at 4 (filed Sept. 22, 2006); Uniradio Application for Review at
6 (filed Oct. 12, 2006); Anderson Desk Application for Review at 4 (filed
Sept. 22, 2006).
Texas Media Group, Inc. 5 FCC Rcd at 2852. See also Ramko Distributors,
Inc., 22 FCC Rcd 7161 (2007) (regulatees are responsible for compliance
with the Commission's rules and they should not rely on informal opinions
from Commission staff).
Hinton Telephone Company, 10 FCC Rcd 11625, 11637 (1995). See also Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir 1991); Schweiker v. Hansen,
450 U.S. 785, 790 (1981) (petitioner's reliance on erroneous staff advice
does not estop agency from requiring compliance with valid regulation).
See Section 0.261 of the Rules, 47 C.F.R. S: 0.261, Authority Delegated to
the International Bureau; Section 0.311 of the Rules, 47 C.F.R. S: 0.311,
Authority Delegated to the Enforcement Bureau.
47 U.S.C. S: 301.
47 C.F.R. S: 101.1 et seq.
See 47 C.F.R. S: 101.31(b). As noted above, none of Petitioners' proposed
stations met the requirement that the station site lie beyond 56.3
kilometers of any international border. See id. at S: 101.31(b)(v); supra
note 6.
See In re: Notices of Apparent Liability for Forfeitures of Emery
Telephone, 15 FCC Rcd 7181, 7186 (1999). The courts have found that, as a
general matter, the Commission "is best positioned to weigh the benefits
of pursuing an adjudication against the costs to the agency (including
financial and opportunity costs) and the likelihood of success." In the
Matter of Radio One Licenses, LLC, 19 FCC Rcd 23922, 23932 (2004), citing
New York State Dept. of Law v. F.C.C., 984 F.2d 1209, 1213 (D.C. Cir.
1993).
See In the Matter of Cablevision Systems Corporation, 15 FCC Rcd 24298,
24303-24304 (2000).
Kojo Application for Review at 5 - 6; More Application for Review at 5 -
6; Uniradio Application for Review at 7 - 9; Anderson Application for
Review at 5 - 6. Citing Frank C. Newman, Should Official Advice be
Reliable - Proposals as to Estoppel and Related Doctrines in
Administrative Law, 53 Colum. L. Rev 374 (1953), the Petitioners argue
that within each agency "there are officials who are distinctly qualified
to issue binding rulings." Kojo Application for Review at 5 - 6; More
Application for Review at 5 - 6; Uniradio Application for Review at 8;
Anderson Application for Review at 4 - 5. The Petitioners do not mention
whether these rulings must be written or can be oral. We note our
disagreement with the Petitioners' characterization of the alleged actions
taken as "policymaking." What the Petitioners have described would not be
an establishment of a policy, but an exercise of agency discretion not to
pursue a specific enforcement action during a period of international
impasse. As explained above, Petitioners were aware that those
circumstances had changed, given the end of the international licensing
impasse in 2004 and the issuance of the NOUO to Kojo, on December 17,
2004.
See AAT Electronics Corporation, 93 FCC 2d 1034, 1047 (1983). In AAT
Electronics, the Commission found unpersuasive AAT's contention that it
relied on a Bureau official's representation because, among other reasons,
the Bureau employee in question was a staff attorney who did not have
policy making authority.
Kojo Application for Review at 7.
Id. at 6; More Application for Review at 6; Uniradio Application for
Review at 9; Anderson Application for Review at 6.
Federal-State Joint Board on Universal Service, CC Docket No. 96-45,
Memorandum Opinion and Order, 15 FCC Rcd 7170, 7178 (1999).
Application for Review of Specialized Mobile Radio Station WYA-671
Licensed to AAT Electronics Corp., Staten Island, New York, 53 R.R.2d
1215, para. 47 (1983).
Id.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.115(g).
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 09-114
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Federal Communications Commission FCC 09-114