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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-11-PA-0234
Aramark
) NAL/Acct. No.: 201232400006
Licensee of Station WQFC968
) FRN: 0021232905
Wynnewood, Pennsylvania
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 4, 2012 Released: June 4, 2012
By the Acting District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Aramark, licensee of Private Land Mobile Station WQFC968 in
Wynnewood, Pennsylvania, apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended (Act), and
Section 1.903(a) of the Commission's rules (Rules) by operating radio
transmitting equipment on unauthorized frequencies. We conclude that
Aramark is apparently liable for a forfeiture in the amount of twelve
thousand dollars ($12,000).
II. BACKGROUND
2. On October 4, 2011, agents in the Enforcement Bureau's Philadelphia
Office monitored radio transmissions on the frequency 469.9875 MHz
and, using direction finding techniques, determined that the source of
the transmissions on 469.9875 MHz was located at Bryn Mawr Hospital,
130 South Bryn Mawr Avenue, Bryn Mawr, Pennsylvania. The agents also
monitored an associated repeater station operating on the frequency
464.9875 MHz and heard the repeater station transmit the call sign
WQFC968. The source of the transmissions on 464.9875 MHz, however, was
not located at Bryn Mawr Hospital.
3. After conducting the monitoring on October 4, 2011, agents searched
the FCC database and determined that Aramark held the license for
Private Land Mobile Station WQFC968, which authorized operation at
nearby Lankenau Hospital. The license, however, did not authorize
operation on the frequencies 464.9875 MHz and 469.9875 MHz.
4. On October 6, 2011, agents returned to the Bryn Mawr, Pennsylvania
area to locate the source of the transmissions on the frequency
464.9875 MHz. Using direction finding techniques, the agents
determined that the repeater station operating on 464.9875 MHz was
located at Lankenau Hospital, 100 East Lancaster Avenue, Wynnewood,
Pennsylvania. The agents also monitored radio transmissions on the
frequency 469.9875 MHz in the Wynnewood, Pennsylvania area and used
direction finding techniques to confirm that the source was located at
Lankenau Hospital.
5. After conducting the monitoring on October 6, 2011, the agents
conducted an inspection of the radio transmitting equipment at
Lankenau Hospital and found that Aramark was operating handheld radios
on the frequency 469.9875 MHz and a repeater station on the frequency
464.9875 MHz. Aramark reported that it was contracted to provide
transportation services at Lankenau Hospital and Bryn Mawr Hospital
and used the repeater system so that its employees in the
transportation departments at each hospital could communicate with
each other. On October 6, 2011, agents also inspected the handheld
radios that the valet department operated at Lankenau Hospital and
found that the handheld radios transmitted on the frequency 155.355
MHz. Aramark stated that it is contracted to provide valet services at
Lankenau Hospital and was using 155.355 MHz as the input frequency to
a repeater station that was located at Lankenau Hospital.
6. On October 12, 2011, agents conducted an inspection of the radio
transmitting equipment at Bryn Mawr Hospital and found that Aramark
was operating a control station on the frequency 469.9875 MHz. Aramark
stated that it installed the 469.9875 MHz control station at Bryn Mawr
Hospital so that its employees in the transportation department at
Bryn Mawr Hospital could communicate with the employees in the
transportation department at Lankenau Hospital.
7. At the time of the inspections on October 6, 2011, and October 12,
2011, Aramark could provide no evidence that it was authorized to
operate any radio transmitting equipment on the frequencies 464.9875
MHz, 469.9875 MHz, or 155.355 MHz. In an e-mail dated October 18,
2011, a representative from Comlink, Aramark's radio communications
service company, reported that the repeater system installed at
Lankenau Hospital and operated by Aramark's transportation department
should have been operating on the frequency pair 464.9625 MHz and
469.9625 MHz instead of the frequency pair 464.9875 MHz and 469.9875
MHz. The Comlink representative further reported that Aramark is now
operating on the authorized frequency pair. In an e-mail dated
December 6, 2011, the Comlink representative acknowledged that
Aramark's valet department was operating on the unauthorized frequency
155.355 MHz. On February 9, 2012, agents conducted a follow-up
inspection and confirmed that Aramark is operating only on authorized
frequencies.
III. DISCUSSION
8. Section 503(b) of the Communications Act of 1934, as amended (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
9. 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 rules applicable to
their particular service and with a valid authorization granted by the
Commission. As detailed above, agents found that Aramark operated (1)
a repeater system on the unauthorized frequency pair 464.9875
MHz/469.9875 MHz at Lankenau Hospital; (2) a control station on the
unauthorized frequency 469.9875 MHz at Bryn Mawr Hospital; and (3)
handheld radios at Lankenau Hospital on the unauthorized frequency
155.355 MHz. A representative from Comlink, Aramark's radio
communications service company, confirmed that Armark did not have
authority to operate on any of these frequencies under its license for
Station WQFC968 or under any other license. Based on the evidence
before us, we find that Aramark apparently willfully and repeatedly
violated Section 301 of the Act and Section 1.903(a) of the Rules by
operating radio transmitting equipment on unauthorized frequencies.
B. Proposed Forfeiture Amount
10. 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
Aramark is apparently liable for a forfeiture of $4,000 for each of
the unauthorized frequencies on which it operated, for a total
forfeiture of $12,000.
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 of the Commission's rules, Aramark is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twelve thousand dollars ($12,000) for violations of Section 301 of the
Act and Section 1.903(a) of the Commission's rules.
12. 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, Aramark
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 credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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.
Regardless of the form of payment, 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. If you have questions regarding
payment procedures, please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Aramark shall
send electronic notification on the date said payment is made to
NER-Response@fcc.gov.
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 1.16 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. Aramark also
shall e-mail the written response to NER-Response@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 (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.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Aramark at 1101 Market Street,
Philadelphia, Pennsylvania 19107.
FEDERAL COMMUNICATIONS COMMISSION
Kevin Doyle
Acting District Director
Philadelphia District Office
Northeast Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
The agents were monitoring 469.9875 MHz as part of an unrelated
investigation involving alleged interference to the United States Coast
Guard (USCG) in the Bryn Mawr, Pennsylvania area.
At the time of the inspection, the license for Station WQFC968 authorized
Aramark to operate three repeater systems on the frequency pairs 463.9625
MHz/468.9625 MHz, 464.9625 MHz/469.9625 MHz, and 464.5875 MHz/469.5875 MHz
and control stations on the frequencies 468.9625 MHz, 469.9625 MHz and
469.5875 MHz at the Lankenau Hospital, 100 East Lancaster Avenue,
Wynnewood, Pennsylvania.
Copy of e-mail on file in EB-11-PA-0234.
Copy of e-mail on file in EB-11-PA-0234.
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).
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).
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. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 503(b), 301; 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314,
1.80, 1.903(a).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-875
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Federal Communications Commission DA 12-875