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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                               )                               
     In the Matter of              File No. EB-09-SE-038       
                               )                               
     University of San Diego       NAL/Acct. No. 201032100019  
                               )                               
     San Diego, California         FRN # 0001526730            
                               )                               


                  notice of apparent liability for forfeiture

   Adopted: February 19, 2010 Released: February 19, 2010

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       the University of San Diego ("the University"), former licensee of
       Private Land Mobile Radio ("PLMRS") station WPQD526, in San Diego,
       California, 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 the University'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 1, 2000, the University was granted a license to operate
       station WPQD526 until the license expiration date of June 1, 2005. On
       August 6, 2005, the Commission's Wireless Telecommunications Bureau
       ("WTB") cancelled the license for WPQD526 since there was no record
       that the University had filed a renewal application for the station.
       On February 22, 2009, the University filed with WTB a request for
       Special Temporary Authority ("STA"), stating that it had just noticed
       that its license for WPQD526 had expired, and the STA was necessary
       for continued operation of its radio communications pending action on
       its application for a new license to reinstate operation on the
       expired frequency. On February 25, 2009, WTB granted the STA under
       call sign WQJZ620.

    3. Because it appeared that the University may have operated WPQD526
       after the expiration of its license, WTB referred the matter to the
       Enforcement Bureau for investigation and possible enforcement action.
       On June 3, 2009, the Enforcement Bureau's Spectrum Enforcement
       Division issued a letter of inquiry ("LOI") to the University
       requesting information about whether it operated without authority and
       failed to file a renewal. 

    4. In its June 30, 2009 response to the LOI, the University stated that
       it first became aware of the expiration of its license to operate
       station WPQD526 on or about January 20, 2009. Upon discovering the
       expiration of its license, the University stated that it "promptly
       took steps to rectify the situation" by filing for a request for
       special temporary authority and a new license on February 22, 2009 and
       March 9, 2009 respectively. The University stated that after June 1,
       2005, it continued to use station WPQD526 for internal staff, public
       safety and emergency communications with the belief that the license
       was current. The University also explained that it did not receive any
       complaints regarding its use during that time period nor was it made
       aware that the license had expired. Further, the University stated
       that it understands the importance of complying with the Commission's
       rules and has revised its process for overseeing and coordinating the
       renewal of FCC licenses. The University has asserted that henceforth,
       the University's Office of General Counsel will now coordinate the
       appropriate maintenance and timely renewal of all FCC licenses
       maintained by the institution.

   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, the University was required to maintain its
       authorization in order to operate station WPQD526. The University
       admitted that it operated its PLMRS station without Commission
       authority from the initial license expiration date. By operating
       station WPQD526 after the station's license expiration date of June 1,
       2005, the University apparently violated Section 301 of the Act and
       Section 1.903(a) of the Rules. The University also acted in apparent
       violation of Section 1.949(a) of the Rules by failing to timely file a
       renewal application for station WPQD526.

    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 the University'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 the University'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 the
       University's conduct has continued over a period that began in 2005,
       the forfeiture amount we propose herein relates only to the
       University'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 the University's
       separate violations.

   11. We propose a forfeiture in the amount of $5,000 for the University's
       continued operation of station WPQD526 after the expiration of its
       license on June 1, 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 the University's unauthorized operations occurred for
       more than three years. In addition, we propose the full base
       forfeiture amount of $3,000 for the University'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 the University's request that the Commission waive any fees
       or penalties associated with the expiration of license WPQD526. As a
       Commission licensee, the University is charged with knowledge of the
       full range of its obligations, including its duty to comply with the
       terms of its authorization, the Act and Rules by timely seeking
       renewal of its license to maintain operating authority.  We find,
       however, that a downward adjustment from $8,000 to $6,400 is warranted
       since the University 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, the University of San
   Diego 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, the University of San Diego 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. The University of San Diego will
   also send electronic notification on the date said payment is made to
   Celia.Lewis@fcc.gov and Ricardo.Durham@fcc.gov.

   16. The written statement seeking reduction or cancellation of the
   proposed forfeiture, if any, must include a detailed factual statement
   supported by appropriate documentation and affidavits pursuant to Sections
   1.80(f)(3) and 1.16 of the Rules. The written statement 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. The statement should also be emailed to Celia Lewis at
   Celia.Lewis@fcc.gov and Ricardo Durham at Ricardo.Durham@fcc.gov.

   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 Kelly Capen Douglas, General Counsel, University of
   San Diego, Hughes Administration Center, 212, 5998 Alcala Park, San Diego,
   CA 92110-2492.

   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. 0003746175 granting the University a STA on February 25,
   2009, under the call sign WQJZ620. 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 Nancy Weber,
   University of San Diego (June 3, 2009).

   See Letter from Kelly Capen Douglas, General Counsel, University of San
   Diego, to Celia Lewis, Spectrum Enforcement Division, Enforcement Bureau,
   Federal Communications Commission (June 30, 2009) ("Response").

   Response at 1.

   Id. See File No. 0003764832 granting the University a new license on March
   12, 2009, under the call sign WQKA877. The license application was filed
   on March 9, 2009.

   Response at 1.

   Response at 2.

   Id.

   Id.

   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 Nevada Sun Peak LP, Notice of Apparent Liability for Forfeiture, DA
   09-2644 (Enf. Bur., Spectrum Enf. Div. released January 4, 2010) ("Nevada
   Sun Peak") (proposing $5,000 forfeiture for unauthorized operation of
   PLMRS station for over three years); 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) (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., Nevada Sun Peak, DA 09-2644 at P: 11; 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).

   Response at 2.

   See Discussion Radio, 19 FCC Rcd at 7437; Gilmore Broadcasting Corp.,
   Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6284, 6286-87
   (Enf. Bur., Spectrum Enf. Div. 2006); Journal Broadcast Corporation,
   Notice of Apparent Liability for Forfeiture, 20 FCC Rcd 18211, 18214 (Enf.
   Bur., Spectrum Enf. Div. 2005).

   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 10-287

   2

                  Federal Communications Commission DA 10-287