Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Towerstream Corporation
) File No.: EB-FIELDSCR-12-00004030
Licensee of Fixed Earth
Stations ) NAL/Acct. No.: 201232600017
KA407 and KA412, ) FRN: 0015467749
Miami, Florida )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 26, 2012 Released: September 26, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Towerstream Corporation (Towerstream), licensee of
co-located Fixed Earth Stations, KA407 and KA412, in Miami, Florida,
apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended (Act), and Section 25.102(a) of
the Commission's rules (Rules), by operating a fixed earth station in
Miami, Florida without the requisite Commission authorization. We
conclude that Towerstream is apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000). In addition, we direct
Towerstream to submit, no later than thirty (30) calendar days from
the date of this NAL, a statement signed under penalty of perjury
stating that it is in compliance with the Commission's satellite
communications requirements.
II. BACKGROUND
2. Towerstream is authorized to operate fixed earth stations under Call
Signs KA407 and KA412 using antennas measuring 15.5 meters in diameter
and 9.3 meters in diameter at 4045 NW 97th Ave., Miami, Florida. On
October 4, October 6, and November 10, 2011, agents from the
Enforcement Bureau's Miami Office (Miami Office) determined that
transmissions on the frequency 6381.9 MHz were emanating from a third
(but smaller) antenna located at 4045 NW 97th Ave., Miami, Florida.
3. On November 10, 2011, agents from the Miami Office contacted
Towerstream's vice president of engineering and operations and
arranged to inspect Fixed Earth Stations KA407 and KA412 later that
day with one of Towerstream's engineers. The Towerstream engineer
confirmed that it was using an antenna measuring 3.8 meters in
diameter. The Commission's records, however, do not reflect any
authorization being granted to Towerstream to operate its earth
stations with an antenna measuring 3.8 meters in diameter.
III. DISCUSSION
4. 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. Unlicensed Operations
5. The evidence in this case is sufficient to establish that Towerstream
violated Section 301 of the Act and Section 25.102(a) of the Rules.
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 granted under the provisions of the Act.
Section 25.102(a) of the Rules states that "[n]o person shall use or
operate apparatus for the transmission of energy or communications or
signals by space or earth stations except under, and in accordance
with, an appropriate authorization granted by the Federal
Communications Commission." According to the Commission's records,
Towerstream is authorized to operate fixed earth stations under Call
Signs KA407 and KA412 using antennas measuring 15.5 meters in diameter
and 9.3 meters in diameter at 4045 NW 97th Ave., Miami, Florida. On
October 4, October 6, and November 10, 2011, agents from the Miami
Office observed transmissions emanating on the frequency 6381.9 MHz
from an unauthorized antenna, measuring 3.8 meters in diameter, that a
Towerstream engineer confirmed was in operation. The Commission,
however, has no record that Towerstream ever submitted any application
to modify its licenses to authorize operation of a fixed earth station
using a 3.8 meter antenna at this location. Accordingly, Towerstream's
use of an unauthorized antenna was outside of the scope of its license
authorizations. Based on the evidence before us, we find that
Towerstream apparently willfully and repeatedly violated Section 301
of the Act and Section 25.102(a) of the Rules by operating a fixed
earth station without appropriate authorization granted by the
Commission.
B. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization for the service is $10,000. 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. Because Towerstream is a
multi-million dollar business, a forfeiture above the base forfeiture
amount is necessary to ensure that it serves as an effective deterrent
(and not simply a cost of doing business) against Towerstream's future
noncompliance with the Commission's satellite communications
requirements. Applying the Forfeiture Policy Statement, Section 1.80
of the Rules, and the statutory factors to the instant case, we
conclude that Towerstream is apparently liable for a total forfeiture
in the amount of $15,000.
7. We also direct Towerstream to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Towerstream, stating that its operation of
Fixed Earth Stations KA407 and KA412 are in full compliance with the
Rules and with the terms of its authorizations. This statement must be
provided to the Miami Office at the address listed in paragraph 10,
below, within thirty (30) calendar days of the release date of this
NAL.
IV. ORDERING CLAUSES
8. 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, Towerstream
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violations of Section 301 of the Act and Section 25.102(a) of the
Commission's rules.
9. 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,
Towerstream Corporation SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Towerstream Corporation SHALL SUBMIT a
statement as described in paragraph 7, above, to the Miami Office
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152-0617.
Towerstream Corporation shall also e-mail the written statement to
SCR-Response@fcc.gov.
11. 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. Towerstream Corporation shall also send
electronic notification on the date said payment is made to
SCR-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.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
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, South
Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152-0617
and include the NAL/Acct. No. referenced in the caption. Towerstream
Corporation also shall e-mail the written response to
SCR-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 Towerstream Corporation at
Tech II, 55 Hammarlund Way, Middletown, RI 02842.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 25.102(a).
See License File No. SES-RWL-20040305-00317 (KA407); and License File No.
SES-RWL-20040422-00574 (KA412).
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: 25.102(a).
See supra note 3.
See 47 C.F.R. S:S: 25.117, 25.130 (requiring licensees to submit
applications to modify the terms of their licenses on FCC Form 312 and
prohibiting licensees from making any such modifications prior to
application grant).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. 1.80.
47 U.S.C. S: 503(b)(2)(E).
In 2011, Towerstream Corporation reported $26.495 million in annual
revenues. http://finance.yahoo.com/q/is?s=TWER+Income+Statement&annual
(last visited Aug. 29, 2012).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100, para. 24
(stating need to take into account a violator's ability to pay in
determining the amount of a forfeiture to guarantee that forfeitures
issued against large or highly profitable entities are not considered
merely an affordable cost of doing business). See, e.g., Tesla
Exploration, Inc., EB-11-PA-0153, Notice of Apparent Liability for
Forfeiture, FCC 12-88, 2012 WL 3195376, at *3, para. 10 (Aug. 3, 2012)
(upwardly adjusting proposed forfeiture due to violator's ability to pay);
Time Warner Entertainment-Advance/Newhouse Partnership, Notice of Apparent
Liability for Forfeiture and Order, 27 FCC Rcd 8047, 8049, para. 6 (Enf.
Bur. 2012) (same).
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, 0.311, 0.314,
1.80, 25.102(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-1535
3
Federal Communications Commission DA 12-1535