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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-08-SE-721
)
Lubbock Aero NAL/Acct. No. 201032100020
)
Lubbock, Texas FRN # 0018657619
)
notice of apparent liability for forfeiture
Adopted: March 23, 2010 Released: March 25, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Lubbock Aero, in Lubbock, Texas, apparently liable for a forfeiture
amount of ten thousand dollars ($10,000) for operating without
authorization in 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").
II. BACKGROUND
2. In August 2008, the Enforcement Bureau's Spectrum Enforcement Division
("Division") received a complaint alleging that Lubbock Aero was
operating on frequency 123.300 MHz without Commission authorization
and could be the source of interference to aviation support stations
authorized to transmit on the frequency. The Division reviewed
Commission records and found that Lubbock Aero, located at the Lubbock
Preston Smith International Airport, was not authorized to operate on
frequency 123.300 MHz. On March 31, 2009, the Division issued a letter
of inquiry ("LOI") to Lubbock Aero.
3. On April 8, 2009, the Division received Lubbock Aero's response to the
LOI in which it admits that it "operated radio communications over
frequency 123.300 MHz" but stated that it "is ... no longer doing so."
Lubbock Aero states that it used this frequency on numerous dates
since January 1, 2008, the time period specified in the LOI, and that
each occurrence was "in response to a call by an inbound or outbound
aircraft." Lubbock Aero states that it did not receive any complaints
of interference when operating on 123.300 MHz, and claims it believed
it had authority to operate on this frequency through a purchase
transaction. Further, Lubbock Aero states it is currently using
frequency 129.100 MHz, and submitted an authorization issued by
Commission licensee, Aviation Spectrum Resources, Inc. ("ASRI"), for
temporary use of call sign KUF6 on frequency 129.100 MHz at the
Lubbock Preston Smith International Airport.
4. After reviewing the LOI response, the Division found that Lubbock Aero
had not provided sufficient information and that further clarification
was required. Subsequently, on October 15, 2009, the Division issued a
second LOI ("follow up LOI") directing Lubbock Aero to provide
additional information relating to its use of frequencies 123.300 MHz
and 129.100 MHz. In its follow up LOI response, Lubbock Aero states
that, beginning January 1, 2008, it operated on frequency 123.300 MHz
but it does not have a record of the specific dates or occurrences of
such operation. Lubbock Aero states, however, that it "halted use of
this frequency immediately upon receipt of the March 31, 2009 LOI."
Lubbock Aero further clarifies that the use of frequency 123.300 MHz
during the period in question was in response to aircraft
communications that it regarded as "General FBO business." With
respect to its current use of frequency 129.100 MHz, Lubbock Aero
explains that it has subsequently been assigned use of this frequency
at the Lubbock Preston Smith International Airport from ASRI under
call sign WQKI528.
III. DISCUSSION
5. Section 301 of the Act prohibits 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. Section 1.903(a) of the Rules requires that wireless
radio services "must be used and operated ... with a valid
authorization granted by the Commission." Section 87.18(a) of the
Rules states that stations in the aviation services, with the
exception of certain aircraft stations, must be licensed. Under
Section 87.323(b) of the Rules, 123.300 MHz is "available for
assignment to aviation support stations for pilot training,
coordination of lighter-than-air aircraft operations, or coordination
of soaring or free ballooning activities."
6. Lubbock Aero admits that it operated on 123.300 MHz "on numerous
dates" between January 1, 2008 and March 31, 2009, and that this
frequency was used to provide communication services that "would be
regarded as General FBO business" in response to calls by inbound or
outbound aircraft. Commission records show, however, that during this
period, Lubbock Aero held no license authorizing it to operate as an
aeronautical advisory station or to operate on 123.300 MHz, a
frequency reserved for aviation support stations. Lubbock Aero's claim
that it thought it was authorized by the Commission to operate on the
frequency 123.300 MHz based on its belief "that all licenses held by
previous owners were to be transferred at the time of purchase" is
unsupported. Lubbock Aero provides no further details, and Commission
records show no grant of authority ever issued by the Commission
approving an assignment or transfer of control of station licenses
concerning this frequency to Lubbock Aero. Thus, it appears that
Lubbock Aero violated Section 301 of the Act and Section 1.903(a) of
the Rules by operating on frequency 123.300 MHz without Commission
authority.
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 committing or omitting the
action in question, irrespective of any intent to violate the
Commission's Rules, and "repeated" means commission or omission of an
act that occurs more than once or continuous action that lasts more
than one day. Based on the record before us, it appears that Lubbock
Aero's violation of Section 301 of the Act and Section 1.903(a) of the
Rules is willful and repeated.
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." As we explain below, having considered the statutory
factors, we propose a forfeiture of ten thousand dollars ($10,000).
9. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority. Based on the
record in this proceeding, we propose a forfeiture of $10,000 for
Lubbock Aero's unauthorized operations. We do not find that any
downward adjustments to this proposed forfeiture amount are
appropriate. Although we have made downward adjustments in cases where
a licensee has operated under color of authority or under an expired
license, we do not find such adjustment appropriate in this case.
Lubbock Aero's unauthorized operation on frequency 123.300 MHz was
undertaken without any previous Commission authorization, in violation
of the Act and Commission rules. Accordingly, we propose a $10,000
forfeiture. Consistent with precedent, the proposed $10,000 forfeiture
relates to Lubbock Aero's violations that occurred within the past
year.
10. Based on the foregoing, we find Lubbock Aero in apparent willful and
repeated violation of Section 301 of the Act and Section 1.903(a) of
the Rules for apparently operating a radio station on frequency
123.300 MHz without Commission authority. Therefore, Lubbock Aero is
apparently liable for a forfeiture in the amount of $10,000.
IV. ORDERING CLAUSES
11. 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, Lubbock Aero IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for the willful and repeated
violation of Section 301 of the Act and Section 1.903(a) of the Rules.
12. 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, Lubbock Aero SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. 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. Lubbock Aero will also send electronic
notification to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and to
Jacqueline Johnson at Jacqui.Johnson@fcc.gov on the date said payment
is made.
14. 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 JoAnn.Lucanik@fcc.gov and to Jacqui.Johnson@fcc.gov.
15. 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.
16. 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 Richard Casler, Vice President/General
Manager for Lubbock Aero, 6304 North Cedar Avenue, Lubbock, Texas
79403-6842.
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).
Under Commission Rules, the 123.300 MHz frequency is "available for
assignment to aviation support stations used for pilot training,
coordination of lighter-than-air aircraft operations, or coordination of
soaring or free ballooning activities." 47 C.F.R. S: 87.323(b).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Richard Casler,
Manager, Lubbock Aero (March 31, 2009).
Letter from Richard Casler, Vice President/General Manager, Lubbock Aero,
to Spectrum Enforcement Division, Federal Communications Commission (April
8, 2009) ("LOI Response").
Id.
Id.
ASRI is a communications company for the air transport industry and the
successor to Aeronautical Radio, Inc. ASRI is the industry licensee in the
aeronautical enroute and fixed services. The Commission granted ASRI a
license for an Aeronautical and Fixed Aviation station, under call sign
KUF6, on January 1, 2005. The license expires on February 10, 2015.
The temporary authority is dated April 7, 2009 and set to expire 120 days
from the date of issue.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Richard Casler,
Vice President/General Manager, Lubbock Aero (October 15, 2009).
Letter from Richard Casler, Vice President/General Manager, Lubbock Aero,
to Spectrum Enforcement Division, Federal Communications Commission
(October 29, 2009) ("follow up LOI Response").
Id.
Id. The term FBO means "fixed base operator" or "fixed base of operation"
and refers to a provider of services to general aviation aircraft and
operators. A fixed base operator may be private, municipal, or
state-owned, and is located at, or adjacent to, an airport. Under
Commission rules, stations providing such radiocommunication services are
considered "aeronautical advisory stations (unicoms)" subject to Part 87
Subpart G of the Rules. See 47 C.F.R. S:S: 87.5, 87.213 et. seq.
Id., Attachment. The Commission granted the license for call sign WQKI528
to ASRI on June 2, 2009, which expires on June 2, 2019.
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 87.18(a).
47 C.F.R. S: 87.323(b).
LOI Response.
In fact, Commission records show that no licenses have ever been issued
for use of frequency 123.300 MHz at Lubbock Preston Smith International
Airport, so it is not clear what license authority Lubbock Aero could
believe it acquired in a license assignment or transfer. Further, under
Section 310(d) of the Act, no station license or underlying rights shall
be transferred or assigned without application to the Commission and a
finding by the Commission that the public interest, convenience, and
necessity will be served by the grant of the application. 47 U.S.C. S:
310(d). Commission records do not show any such application was filed
seeking to assign or transfer control of licenses to operate on frequency
123.300 MHz to Lubbock Aero.
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
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; 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, 17110 (1997), recon. denied, 15 FCC Rcd 303
(1999)("Forfeiture Policy Statement").
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). See also
La Carpa Corp., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
2744, 2745 (Enf. Bur., Spectrum Enf. Div., 2007) (forfeiture paid); Lazer
Broadcasting Corp., Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd 8710, 8712 (Enf. Bur., Spectrum Enf. Div., 2006) (forfeiture paid);
Shared Data Networks, LLC, Notice of Apparent Liability for Forfeiture, 20
FCC Rcd 18184, 18186 (Enf. Bur., Spectrum Enf. Div., 2005) (forfeiture
paid).
We note that Lubbock Aero holds an Aircraft license, call sign 222LA (ULS
database, Aircraft - 002358383); however, this license permits
radiocommunications from aircraft only, and does not provide authorization
for use of frequencies by aeronautical ground stations.
See e.g., Able Infosat Communications, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 887, 889-90 (Enf. Bur., Spectrum Enf. Div.,
2008) (proposing the base forfeiture amount of $10,000 for operating
without Commission authorization) (forfeiture paid); Domtar Industries,
Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd. 13811,
13815-16 (Enf. Bur., Spectrum Enf. Div., 2006) ("Domtar Industries")
(proposing the base forfeiture amount of $10,000 for operating without
Commission authorization and an upward adjustment of $4,000 for
unauthorized operations that spanned over a five-year period) (forfeiture
paid).
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6) prohibits the
assessment of a forfeiture for violations that occurred more than a year
prior to the issuance of the NAL, but does not bar us from taking into
account the continuous nature of violations in determining the appropriate
enforcement action and/or forfeiture amount. See Mitchell Electric
Membership Cooperative, Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 5538, 5541 (Enf. Bur., Spectrum Enf. Div., 2007) (forfeiture
paid). See also Domtar Industries, 21 FCC Rcd at 13816.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S: 1.80.
47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.16.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-390
2
Federal Communications Commission DA 10-390