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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-10-SD-0018
Pacific Spanish Network, Inc.
) NAL/Acct. No.: 201132940003
Licensee of WQCV596
) FRN: 0012469557
Chula Vista, California
)
)
FORFEITURE ORDER
Adopted: March 15, 2012 Released: March 16, 2012
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of six thousand dollars ($6,000) to Pacific Spanish Network, Inc.
(Pacific Spanish), licensee of Fixed Microwave Service radio station,
WQCV596, in Chula Vista, California, for willfully and repeatedly
violating Section 1.903(a) of the Commission's rules (Rules), which
requires stations in the Wireless Radio Services to operate in
accordance with the provisions of the rule that are applicable to
their particular service and only with a valid authorization granted
by the Commission. The noted violations involved Pacific Spanish's
operation of Station WQVC596 on a frequency and antenna orientation
not authorized by its license.
II. BACKGROUND
2. On February 28, 2010, the Enforcement Bureau's San Diego Office (San
Diego Office) received information that an application submitted by
Pacific Spanish for modification of its Fixed Microwave Service radio
station license for WQCV596 had been dismissed by the FCC for failing
to make payment on a delinquent debt. A search of the Commission's
database revealed that Pacific Spanish filed an application on January
6, 2010 (January 2010 Application) to: (1) change the operating
frequency from 22473.5 MHz to 21241.5 MHz; (2) change the antenna
azimuth from 116.2DEG to 161.5DEG; and (3) relocate the endpoint of
the microwave path in Tijuana, Mexico.
3. Agents from the San Diego Office, on March 1, 2010, inspected the
Station WQCV596 control point, located at 296 H Street, Chula Vista,
California and, using a spectrum analyzer, observed the operating
parameters of Station WQCV596. The San Diego agents found that a
signal on 21241.5 MHz was being emitted from their microwave antenna,
and its antenna was pointed at an azimuth approximately 160DEG atop
the building roof, in the manner proposed in the January 2010
Application. A subsequent inspection on March 2, 2010, by the agents
revealed the same findings.
4. On April 9, 2010, a San Diego agent returned to the Station WQCV596
control point and once again found the microwave radio station still
active on 21241.5 MHz and its antenna pointed at an azimuth
approximately 160DEG. After the inspection of Station WQCV596, the
agent contacted the Pacific Spanish engineer for information, and the
engineer stated that a license to operate on frequency 21241.5 MHz had
been issued and a copy would be e-mailed to the San Diego Office.
Later that day, the San Diego Office received an e-mail message from
the Pacific Spanish engineer with an attachment containing a copy of
Pacific Spanish's license for Station WQCV596. This license, however,
was a copy of the original authorization granted on June 6, 2005, to
operate on frequency 22473.5 MHz. Pacific Spanish could not provide an
FCC authorization indicating that it was authorized to operate Station
WQCV596 on 21241.5 MHz at the time of the inspection.
5. Accordingly, on February 25, 2011, the San Diego Office issued a
Notice of Apparent Liability for Forfeiture (NAL) in the amount of
$6,000 to Pacific Spanish for operating a microwave radio station on a
frequency and antenna orientation not authorized by its license. After
requesting and receiving an extension of time, Pacific Spanish
responded to the NAL. In its Response, Pacific Spanish does not
dispute the facts presented in the NAL, but asks that we reduce the
proposed forfeiture nonetheless based on its asserted history of
providing "high quality" service within its service area; and it
further states that if we do not do so, the proposed forfeiture amount
would only serve to benefit Pacific Spanish's competitors.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining Pacific Spanish's response, Section
503(b) of the Act requires that the Commission take into account 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 other such matters as justice may
require. We considered Pacific Spanish's response to the NAL in light
of these statutory factors and find that no reduction of the
forfeiture is warranted.
7. Section 1.903(a) of the Rules states that "[s]tations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service as set forth in this
title and with a valid authorization granted by the Commission . . .
." On March 1, March 2, and April 9, 2010, San Diego agents determined
that Pacific Spanish was operating Station WQCV596 on frequency
21241.5 MHz, instead of its authorized frequency of 22473.5 MHz; and
that the Station's antenna was pointed at an azimuth approximately
160DEG, instead of its authorized antenna azimuth of 116.2DEG. Pacific
Spanish, however, was unable to produce an FCC license that authorized
its operation on frequency 21241.5 MHz and antenna azimuth of 160DEG.
8. Although Pacific Spanish does not dispute the factual findings in the
NAL, it asks for a reduction of the proposed $6,000 forfeiture, "in
light of [Pacific Spanish's] long history of high quality in
broadcasting within its service area and its continuous striving to
serve the needs of the communities whose signal it reaches." We find
no reason to reduce the proposed forfeiture amount based on this
assertion. The Commission has consistently held that "[l]icensees are
expected to comply with the Commission's Rules as well as to make
continued efforts to serve the community to which they are licensed
and will not be relieved of liability for violations of the Rules by
the fact they have fulfilled their responsibility to serve their
communities." Additionally, "[a] licensee is not relieved of
responsibility for complying with applicable statutes and rules by the
fact that it has performed an outstanding public service to the
community." Therefore, we decline to mitigate the proposed forfeiture
based on Pacific Spanish's asserted public service record.
9. Pacific Spanish also objects to the amount of the forfeiture, arguing
that its competitors in the market would use the amount of the
forfeiture "as an adverse competitive tool." We find that the San
Diego Office, in deciding the appropriate forfeiture in this case,
properly took into account the full extent of the statutory factors
discussed in paragraph 6, above, along with the Forfeiture Policy
Statement, and that Pacific Spanish has presented no evidence, in
support of its argument, that requires or persuades us to reduce the
proposed forfeiture.
10. As a result of our review of Pacific Spanish's Response, pursuant to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we conclude that Pacific Spanish willfully and
repeatedly violated Section 1.903(a) of the Rules. Considering the
entire record and the factors listed above, we find that a forfeiture
in the amount of $6,000 is warranted.
IV. ORDERING CLAUSES
11. 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(f)(4) of the Commission's Rules, Pacific
Spanish Network, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of six thousand dollars ($6,000) for willfully and repeatedly
violating Section 1.903(a) of the Commission's rules.
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days of the
release of this Forfeiture Order. If the forfeiture is not paid within
the period specified, the case may be referred to the U.S. Department
of Justice for collection pursuant to Section 504(a) of the Act.
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 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. Pacific Spanish Network, Inc. shall
also send electronic notification on the date said payment is made to
WR-Response@fcc.gov
13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Pacific Spanish Network Inc., 296 H Street, Chula Vista,
California, 91910, and its counsel, Lewis H. Goldman, P.C., 45 Dudley
Court, Bethesda, Maryland 20814.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 1.903(a).
See File No. 0004084152, filed January 6, 2010.
The January 2010 Application was returned by the Commission's Wireless
Telecommunications Bureau (WTB) on February 23, 2010. See Notice of
Dismissal to Pacific Spanish Networks, Inc., from Federal Communications
Commission, Wireless Telecommunications Bureau, dated February 23, 2010.
In the dismissal letter, WTB cautioned Pacific Spanish that "[i]f you are
currently operating under authority provided by the Commission's Rules
based on your submission of the above referenced application, you must
immediately cease operation until such time as you come into compliance
with the Rules." Id.
On March 18, 2010, Pacific Spanish resubmitted its application to modify
the Station WQCV596 license (March 2010 Application). As in the January
2010 Application, Pacific Spanish proposed to: (1) change the Station's
operating frequency from 22473.5 MHz to 21241.5 MHz; (2) change the
antenna azimuth from 116.2DEG to 161.5DEG; and (3) relocate the endpoint
of the microwave path in Tijuana, Mexico. See File No. 0004177603, filed
March 18, 2010.
On June 9, 2010, WTB granted the March 2010 Application, allowing the use
of frequency 21241.5 MHz with a reorientation of the antenna to an azimuth
of 161.5DEG.
See Pacific Spanish Network, Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 2170 (Enf. Bur. 2011) (NAL).
See Response of Pacific Spanish (filed Jan. 27, 2012) (Response) (on file
in EB-10-SD-0018).
See id.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.903(a).
Response at 1.
Radio Beaumont, Inc., Memorandum Opinion and Order, 50 FCC 2d 904 (1975)
(holding that a licensee's public service to its community will not
justify a reduction in the amount of a forfeiture for a licensee).
Esther Blodgett, Memorandum Opinion and Order, 18 FCC 2d 6 (1969) (finding
that a licensee is expected to provide public service to its community).
Response at 1.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 1.903(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-416
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Federal Communications Commission DA 12-416