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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Texas Soaring Association, Inc.
Midlothian, Texas
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File No.: EB-SED-13-00009045
NAL/Acct. No.: 200932100061
FRN: 0004540456
FORFEITURE ORDER
Adopted: July 25, 2013 Released: July 25, 2013
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
introduction
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of nine thousand dollars ($9,000) against Texas Soaring Association, Inc. (TSA), former licensee of aeronautical and fixed aviation support station KSC8, Midlothian, Texas, for willful and repeated violations of Section 301 of the Communications Act of 1934, as amended (Act), and Section 1.903(a) of the Commission's rules (Rules), and for willful violation of Section 1.949(a) of the Rules. The noted violations involve TSA's operation of station KSC8 without Commission authority for more than five years and its failure to timely file a renewal application for continued authority to operate the station after the expiration of the station license.
* II. BACKGROUND
On June 8, 2009, the Enforcement Bureau's Spectrum Enforcement Division (Division) issued a Notice of Apparent Liability for Forfeiture to TSA, finding that TSA apparently operated station KSC8 without Commission authority from September 22, 2003, the date that the station license expired, until October 2, 2008, the date that TSA's application for a new station license was granted. The Division also found that TSA apparently failed to file a timely application for renewal of the station license by the license expiration date. Consistent with Enforcement Bureau precedent at the time, the Division proposed a forfeiture against TSA in the amount of $9,000 for its apparent willful and repeated violation of Section 301 of the Act and Section 1.903(a) of the Rules, and for its willful violation of Section 1.949(a) of the Rules.
TSA filed its response to the NAL on July 8, 2009. In its NAL Response, TSA admits that it operated station KSC8 without Commission authority after the expiration of its station license and failed to timely file a license renewal application. TSA argues, however, that the proposed forfeiture should be cancelled or reduced. For the reasons set forth herein, we decline to cancel or reduce the proposed forfeiture.
* III. DISCUSSION
* 4. The Division assessed the proposed forfeiture amount in accordance with Section 503(b) of the Act, Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. In examining TSA's NAL Response, we "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 such other matters as justice may require." As discussed below, we are not persuaded by TSA's arguments for reduction or cancellation of the proposed forfeiture amount. We therefore conclude that TSA is liable for a forfeiture in the amount of $9,000 for willfully and repeatedly violating Section 301 of the Act and Section 1.903(a) of the Rules, and for willfully violating Section 1.949(a) of the Rules.
* 5. Section 301 of the Act and Section 1.903(a) of the Rules prohibit 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 authorization. Additionally, under Section 1.949(a) of the Rules, licensees must file an application for renewal of any station license it intends to continue to operate "no later than the expiration date of the authorization for which renewal is sought and no sooner than 90 days prior to expiration." Absent a timely filed renewal application, wireless licenses automatically terminate on the license expiration date.
6. In its NAL Response, TSA requests reduction or cancellation of the proposed forfeiture amount based on its assertion that it made "infrequent use" of the station, primarily for safety-related communications. Under Section 301 of the Act and Section 1.903(a) of the Rules, however, TSA must obtain Commission authorization to operate its station, irrespective of how often, or for what purpose, the station is operated. Moreover, there is no exception to this threshold requirement for public safety-related communications. Licensure for safety-related operations is critical because of the enhanced need to ensure service reliability and protection from interference. Indeed, TSA's unauthorized operations could potentially interfere with properly authorized aeronautical radio communications involving matters relating to aviation safety. Accordingly, we decline to reduce or cancel the proposed forfeiture on this basis.
* 7. TSA also argues that its actions were not "willful." In this regard, TSA asserts that its failure to timely file a renewal application was an "oversight" and that it did not make a "conscious decision" to operate the station without Commission authorization, explaining that TSA is staffed by non-professional volunteers who are not familiar with FCC procedures. We disagree. In the context of a forfeiture action, the term "willful" means that the violator knew it was taking (or not taking) the action in question, irrespective of any intent to violate the law. Thus, a willfulness determination does not require a finding that the rule violation was intentional. Here, TSA -- a Commission licensee -- knew (or should have known) that it had an ongoing and affirmative duty to maintain operating authority for its station, including the duty to ensure timely renewal of the station's license. Even if administrative oversight, inadvertence, or a lack of familiarity with the Rules may have contributed to the violation, they do not preclude a finding of willfulness where an omission is the basis for liability, nor do they mitigate liability arising therefrom. Finally, the Commission has consistently held that licensees are responsible for the acts and omissions of persons acting on their behalf and will not be excused from liability where the actions of such persons result in rule violations. Accordingly, we find that TSA's violations were willful, and decline to reduce or cancel the proposed forfeiture based on TSA's claimed lack of familiarity with FCC requirements.
* 8. TSA also argues that its status as a nonprofit entity and the alleged negative impact that payment of the proposed forfeiture would have on TSA's station operations are mitigating factors that warrant favorable consideration. However, TSA affirmatively states that it not asserting an inability to pay the proposed forfeiture. The Commission has routinely rejected arguments for reduction of a forfeiture based solely on nonprofit status. Accordingly, we decline to reduce or cancel the proposed forfeiture based on TSA's status as a nonprofit entity. Moreover, absent financial documentation to support TSA's assertion that payment of the forfeiture would negatively impact station operations, we decline to reduce the proposed forfeiture on this basis.
* 9. We also decline to reduce the forfeiture based on TSA's assertion that it took corrective action after being notified of the expiration of its station license, and that it took "affirmative steps" after the issuance of the NAL to ensure future compliance with the Rules. While TSA's compliance efforts are laudable, the Commission has repeatedly held that remedial measures implemented after the initiation of an investigation or the issuance of an enforcement action neither nullifies nor mitigates the violation.
10. Finally, TSA asserts that it has a history of compliance with the Rules that warrants a reduction of the proposed forfeiture. We disagree. When evaluating a petitioner's compliance history, we take into account the number of violations (including concurrent violations) and their duration. In this instance, TSA operated station KSC8 after the expiration of the station's license and without authorization for approximately five years. Based on the extended duration of TSA's operation without Commission authorization, we find that TSA does not have a history of compliance with FCC requirements and therefore decline to reduce the proposed forfeiture amount on this basis.
11. Having considered TSA's response to the NAL in light of the applicable statutory
factors, the Rules, and the Forfeiture Policy Statement, we find that TSA willfully and repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules by operating station KSC8 without authorization, and willfully violated Section 1.949(a) of the Rules by failing to file a timely license renewal application for the station. Accordingly, we find TSA liable for a forfeiture in the amount of $9,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's rules, Texas Soaring Association, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of nine thousand dollars ($9,000) for willful and repeated violation of Section 301 of the Communications Act of 1934, as amended and Section 1.903(a) of the Commission's rules and for willful violation of Section 1.949(a) of the Commission's rules.
* 13. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's rules within ten (10) calendar days after the release date 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 enforcement of the forfeiture pursuant to Section 504(a) of the Communications Act of 1934, as amended. Texas Soaring Association, Inc. shall send electronic notification of payment to Nissa Laughner at Nissa.Laughner@fcc.gov, Daudeline Meme at Daudeline.Meme@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
* 14. The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account number and FRN referenced above. 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.
* 15. 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, DC 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.
16. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by first class mail and certified mail return receipt requested to Phillip C. Umphres, President, and Sherman Griffith, President-Elect, Texas Soaring Association, Inc., 9270 Singleton Road, P.O. Box 1069, Midlothian, TX 76065, and to Phillip C. Umphres, The Law Office of Phillip C. Umphres, Counsel for Texas Soaring Association, Inc., 2600 State Street, Dallas TX 75204.
* FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau