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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
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Federal Communications Commission DA 10-287