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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-09-SE-028
)
Nevada Sun Peak LP NAL/Acct. No. 201032100008
)
Las Vegas, Nevada FRN # 0007642846
)
notice of apparent liability for forfeiture
Adopted: December 30, 2009 Released: January 4, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Liability for Forfeiture ("NAL"), we find Nevada Sun
Peak LP ("Nevada Sun Peak"), former licensee of Private Land Mobile
Radio ("PLMRS") station WPQE205, in Las Vegas, Nevada, apparently
liable for a forfeiture in the amount of six thousand four hundred
dollars ($6,400) for apparent willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended ("Act") and
Section 1.903(a) of the Commission's Rules ("Rules") and for apparent
willful violation of Section 1.949(a) of the Rules. The noted apparent
violations involve Nevada Sun Peak's operation of its PLMRS station
without Commission authority and its failure to timely file a renewal
application for the station.
II. Background
2. On June 7, 2000, Nevada Sun Peak was granted a license to operate
station WPQE205 until the license expiration date of June 7, 2005. On
August 13, 2005, the Commission's Wireless Telecommunications Bureau
("WTB") cancelled the license for WPQE205 since there was no record
that Nevada Sun Peak had filed a renewal application for the station.
On January 30, 2009, Nevada Sun Peak filed with WTB a request for
Special Temporary Authority ("STA"), stating that its license for
WPQE205 had "lapsed," and the STA was necessary for continued
operation of its radio facility pending the filing of an application
for a new license.
3. Because it appeared that Nevada Sun Peak may have operated WPQE205
after the expiration of its license, WTB referred the matter to the
Enforcement Bureau for investigation and possible enforcement action.
On March 12, 2009, the Enforcement Bureau's Spectrum Enforcement
Division issued a letter of inquiry ("LOI") to Nevada Sun Peak.
4. In its April 10, 2009 response to the LOI, Nevada Sun Peak stated that
it inquired with the FCC about the status of its license for WPQE205
in late 2008, learned of its expiration and filed an STA on January
30, 2009. Nevada Sun Peak explained that on October 26, 2004, prior to
the expiration of its station's license, its previous site manager
initiated the renewal process, enlisted the services of Business Radio
Licensing, and paid the company to file the renewal application for
WPQE205. Nevada Sun Peak maintains that until the 2008 inquiry by its
current site manager, it "did not have any reason to believe that the
renewal application was not completed" or that its license "was
otherwise not in good standing." Upon discovering the expiration of
its license, Nevada Sun Peak stated that it promptly took corrective
action to comply with FCC regulations. Nevada Peak admitted that it
utilized station WPQE205, intermittently, approximately 10-12 times
annually, during the years between the expiration of its license for
WPQE205 and prior to filing its January 30, 2009 STA, but stated that
the exact dates and times of its intermittent use were not readily
available.
III. DISCUSSION
5. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by radio except under, and in accordance
with, a Commission granted authorization. Additionally, Section
1.949(a) of the Rules requires that licensees file renewal
applications for wireless radio stations, "no later than the
expiration date of the authorization for which renewal is sought, and
no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates.
6. As a Commission licensee, Nevada Sun Peak was required to maintain its
authorization in order to operate station WPQE205. Nevada Sun Peak
admitted that it operated its PLMRS station intermittently without
Commission authority from the initial license expiration date. By
operating station WPQE205 from the license expiration date of June 7,
2005, until the filing of its STA request on January 30, 2009, Nevada
Sun Peak apparently violated Section 301 of the Act and Section
1.903(a) of the Rules. Nevada Sun Peak also acted in apparent
violation of Section 1.949(a) of the Rules by failing to timely file a
renewal application for station WPQE205.
7. 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 Nevada Sun Peak's violation of Section 301 of the
Act and Section 1.903(a) of the Rules is willful and repeated, and its
violation of Section 1.949(a) of the Rules is willful.
8. 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."
9. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Nevada Sun Peak's conduct prior to
that time period apparently violated the provisions of the Act and
Rules and from considering such conduct in determining the appropriate
forfeiture amount for violations that occurred within the one-year
statutory period. Thus, while we may consider the fact that Nevada Sun
Peak's conduct has continued over a period that began in 2005, the
forfeiture amount we propose herein relates only to Nevada Sun Peak's
apparent violations that have occurred within the past year.
10. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and a base
forfeiture amount of $3,000 for failure to file required forms or
information. The Commission has held that a licensee's continued
operations without authorization and its failure to timely file a
renewal application constitute separate violations of the Act and the
Rules and warrant the assessment of separate forfeitures. Accordingly,
we herein propose separate forfeiture amounts for Nevada Sun Peak's
separate violations.
11. We propose a forfeiture in the amount of $5,000 for Nevada Sun Peak's
continued operation of station WPQE205 after the expiration of its
license on June 7, 2005. In proposing a $5,000 forfeiture for the
station's unauthorized operations, 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 adjust the $10,000 base forfeiture amount accordingly.
Consistent with precedent, the proposed $5,000 forfeiture takes into
account that Nevada Sun Peak's unauthorized operations occurred for
more than three years. In addition, we propose the full base
forfeiture amount of $3,000 for Nevada Sun Peak's failure to file the
renewal application for its PLMRS station within the time period
specified in Section 1.949(a) of the Rules. Thus, we propose an
aggregate forfeiture of $8,000 ($5,000 for unauthorized operation of a
PLMRS station and $3,000 for failure to timely file a renewal
application).
12. We decline to adjust the forfeiture amount based upon Nevada Sun
Peak's argument that it believed Business Radio Licensing acted on its
behalf to renew the license for station WPQE205 before its expiration.
We also are not persuaded by the documents that the licensee provided
in support of its claim. As a Commission licensee, Nevada Sun Peak is
responsible for knowing and complying with the terms of its
authorization, the Act and the Rules. Moreover, 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." We find,
however, that a downward adjustment from $8,000 to $6,400 is warranted
since Nevada Sun Peak made voluntary disclosures to Commission staff
and undertook corrective measures after learning of its violations,
but prior to any Commission inquiry or initiation of enforcement
action.
IV. ORDERING CLAUSES
13. 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, Nevada Sun Peak LP IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of six thousand four hundred dollars ($6,400) for the willful and repeated
violation of Section 301 of the Act and Section 1.903(a) of the Rules and
the willful violation of Section 1.949(a) of the Rules.
14. 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, Nevada Sun Peak LP SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. 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. Nevada Sun Peak LP will also send
electronic notification on the date said payment is made to
Karen.Mercer@fcc.gov and JoAnn.Lucanik@fcc.gov.
16. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, SW, Washington, DC
20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division, and must
include the NAL/Acct. No. referenced in the caption.
17. 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.
18. 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 Mr. Robert W. Graben, Site Manager, Nevada Sun Peak
LP, 6360 Vegas Valley Drive, Las Vegas, Nevada 89142.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
See File No. 0003722013 granting Nevada Sun Peak an STA on February 2,
2009, under the call sign WQJX364. The grant of the STA does not preclude
or prejudice any enforcement action related to unauthorized operations.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Robert W.
Graben, Nevada Sun Peak LP (March 12, 2009).
See Letter from Robert Graben, Site Manager, Nevada Sun Peak Limited
Partnership, to Marlene H. Dortch, Secretary, Federal Communications
Commission (April 10, 2009) ("Response").
Id. at 1-2.
Id. at 2 and Exhibits A-E.
Id. at 2.
Id. at 3.
Id. at 1. See also Affidavit of Robert Graben.
Id. at 2.
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
Response at 2.
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 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, 22 FCC Rcd. 1051 (2007) (forfeiture
paid); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-71 (2000); Cate
Communications Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388
(1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC
2d 37 (1967), recon. den., 11 FCC 2d 193 (1967); Bureau D'Electronique
Appliquee, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
3445, 3447-48 (Enf. Bur., Spectrum Enf. Div., 2005), forfeiture ordered,
20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div., 2005) (forfeiture paid).
47 C.F.R. S: 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7438 (2004)
("Discussion Radio").
See Discussion Radio, 19 FCC Rcd at 7438.
See Richmond Association d/b/a Hilltop Shopping Center, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 51, 53 (Enf. Bur., Spectrum Enf.
Div., 2008) ("Richmond") (forfeiture paid) (proposing $5,000 forfeiture
for unauthorized operation of an Industrial/Business Pool Radio Service
station for approximately two and one-half years); Yellow Cab Leasing
Inc., Notice of Apparently Liability for Forfeiture, 22 FCC Rcd 12719,
12722 (Enf. Bur., Spectrum Enf. Div., 2007) (proposing $5,000 forfeiture
for unauthorized operation of a PLMRS station for over three years); Five
Star Parking d/b/a Five Star Taxi Dispatch, Notice of Apparently Liability
for Forfeiture, 22 FCC Rcd 18857, 18860 (Enf. Bur., Spectrum Enf. Div.,
2007) (forfeiture paid) (proposing $5,000 forfeiture for unauthorized
operation of a PLMRS station for approximately two and one-half years).
See e.g., Texas Soaring Association, Inc., Notice of Apparent Liability
for Forfeiture, 24 FCC Rcd 7638, 7641 (Enf. Bur., Spectrum Enf. Div.,
2009); Discovery World Television, Inc., Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2883 (Enf. Bur., Spectrum Enf. Div., 2009);
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).
See Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC
Rcd 21861, 21863-64 (2002).
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur. 2004). See also, SES Americom, Inc, Notice of
Apparent Liability for Forfeiture, 24 FCC Rcd 2694, 2697 (Enf. Bur.,
Spectrum Enforcement Div., 2009) (forfeiture paid); Side By Side, Inc.,
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 898, 901 (Enf.
Bur., Spectrum Enf. Div., 2008); Lazer Broadcasting Corp., Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 8710, 8712 (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.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-2644
2
Federal Communications Commission DA 09-2644