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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Bryn Mawr Hospital ) File No.: EB-11-PA-0237
Licensee of Stations WPUT970 and ) NAL/Acct. No.: 201232400009
WQCB705
) FRN: 0021972740
Bryn Mawr, Pennsylvania
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 11, 2012 Released: September 11, 2012
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Bryn Mawr Hospital, licensee of Private Land Mobile
Stations WPUT970 and WQCB705 in Bryn Mawr, Pennsylvania, apparently
willfully and repeatedly violated Section 301 of the Communications
Act of 1934, as amended (Act), and Sections 1.903(a) and (b) of the
Commission's rules (Rules) by operating radio transmitting equipment
on unauthorized frequencies. We conclude that Bryn Mawr Hospital is
apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000). We further direct Bryn Mawr Hospital to submit a
written statement signed under penalty of perjury, within thirty (30)
calendar days from release of this NAL, stating that it is now
operating its radio transmission equipment consistent with Section 301
of the Act and Sections 1.903(a) and (b) of the Commission's rules.
II. BACKGROUND
2. On October 12, 2011, agents from the Enforcement Bureau's Philadelphia
Office conducted an inspection of Bryn Mawr Hospital's radio
transmitting equipment with several hospital staff members, including
the security director and the maintenance director. During the
inspection, the agents determined that the hospital's security
department was operating handheld radios on the frequency 469.4875
MHz. The agents also inspected the security department's repeater
station located in the equipment room on the top floor of the hospital
and determined that the repeater was operating on the frequency pair
464.4875 MHz/469.4875 MHz. Bryn Mawr Hospital staff provided the
agents copies of licenses it holds for two private land mobile
stations-WPUT970 and WQCB705.
3. After conducting the inspection on October 12, 2011, the agents
searched the Commission's records and confirmed that Bryn Mawr
Hospital holds licenses for Private Land Mobile Stations WPUT970 and
WQCB705, which authorizes them to use handheld radios on specific
authorized frequencies. The records also reflect, however, that the
licenses do not include authorization to operate handheld radios on
frequency 469.4875, nor repeater stations on 464.4875.
4. On October 13, 2011, one of the agents conducted a follow-up
inspection of Bryn Mawr Hospital's radio transmission equipment with
the maintenance director. The agent confirmed that Bryn Mawr Hospital
was still operating handheld radios on unauthorized frequencies. The
agent performed a test with the handheld radios and verified that the
handheld radios, indeed, were still transmitting on 469.4875 MHz and
activating the security department's repeater station on the frequency
464.4875 MHz, also an unauthorized frequency.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Operation on Unauthorized Frequencies
6. The record evidence in this case establishes that Bryn Mawr Hospital
operated radio transmitting equipment on two frequencies for which it
was not authorized. Section 301 of the Act states that 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 the Act and with a license issued by the
Commission. Section 1.903(a) of the Rules requires that stations in
the Wireless Radio Service must be used and operated only in
accordance with the rule applicable to their particular service and
with a valid authorization granted by the Commission. In addition,
Section 1.903(b) provides that the holding of an authorization does
not create any rights beyond the terms, conditions, and period
specified in the authorization. During inspections on October 12, 2011
and October 13, 2011, agents found that Bryn Mawr Hospital was
operating handheld radios on the frequency 469.4875 MHz and a repeater
system on the frequency pair 464.4875 MHz/469.4875 MHz. Bryn Mawr
Hospital violated the foregoing sections of the Act and Rules because
its FCC licenses for Private Land Mobile Stations WPUT970 and WQCB705
do not authorize operation of handheld radios on the frequency
469.4875 MHz or a repeater system on the frequency pair 464.4875
MHz/469.4875 MHz. Therefore, based on the evidence before us, we find
that Bryn Mawr Hospital apparently willfully and repeatedly violated
Section 301 of the Act and Sections 1.903(a) and (b) of the Rules by
operating radio transmitting equipment on unauthorized frequencies.
B. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operating on an
unauthorized frequency is $4,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Bryn Mawr Hospital is apparently liable for a forfeiture of $4,000 for
each of the unauthorized frequencies on which it operated, for a total
of $8,000.
8. In addition, we direct Bryn Mawr Hospital to submit a statement,
pursuant to Section 1.16 of the Rules, signed under penalty of
perjury by an officer or director of Bryn Mawr Hospital, stating that
its operation of radio transmission equipment complies with Section
301 of the Act and Sections 1.903(a) and (b) of the Rules. This
statement must be provided to the Philadelphia Office at the address
listed in paragraph 13, below, within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Bryn Mawr Hospital
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violations of Section
301 of the Act and Sections 1.903(a) and (b) of the Commission's
rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Bryn Mawr Hospital SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Bryn Mawr Hospital SHALL SUBMIT a sworn
statement as described in paragraph 8 to the Enforcement Bureau
Office listed in paragraph 13 within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Bryn Mawr Hospital shall also send
electronic notification on the date said payment is made to
NER-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047. Bryn Mawr
Hospital also shall e-mail the written response to
NER-Response@fcc.gov.
14. 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 (GAAP); 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Bryn Mawr Hospital at 130
South Bryn Mawr Avenue, Bryn Mawr, Pennsylvania 19010.
FEDERAL COMMUNICATIONS COMMISSION
David Dombrowski
District Director
Philadelphia District Office
Northeast Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a) & (b).
The Commission's records show that Bryn Mawr Hospital is authorized under
the license for Station WPUT970 to operate mobile radios on the
frequencies 457.3125 MHz, 457.7625 MHz, 461.9875 MHz, 464.4875 MHZ,
467.2125 MHz, 467.2625 MHz, 467.2875 MHz, 467.3625 MHz, and a repeater
station on the frequency pair 461.9875 MHz/466.9875 MHz. The records also
show that the license for Station WQCB705 authorizes Bryn Mawr Hospital to
operate mobile radios on the frequencies 452.1875 MHz and 451.4875 MHz, a
mobile interconnect on the frequency 457.6875, and three repeater stations
on the frequency pairs 451.6875 MHz/456.6875 MHz, 452.1875 MHz/457.1875
MHz, and 451.4875 MHz/ 456.4875 MHz.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.903(b).
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 (1997) (Forfeiture Policy Statement), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314,
1.80, 1.903(a) & (b).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1472
5
Federal Communications Commission DA 12-1472