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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Robert Schmidt dba RSISP Licensee of Station WQMN655
   Ponce, Puerto Rico ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00001225
   NAL/Acct. No.: 2013326800002 FRN: 0020106373




                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 12, 2013  Released: February 12, 2013

   By the Resident Agent, San Juan Office, South Central Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Robert Schmidt dba RSISP, licensee of Station WQMN655, in Ponce,
       Puerto Rico, apparently willfully and repeatedly violated Section 301
       of the Communications Act of 1934, as amended (Act), and Sections
       1.903 and 90.1307 of the Commission's rules (Rules), by failing to
       register two communications sites prior to putting them into
       operation.^ We conclude that Mr. Schmidt is apparently liable for a
       forfeiture in the amount of twelve  thousand dollars ($12,000).

   II. BACKGROUND

    2. RSISP holds a nationwide non-exclusive license to operate individual
       fixed and base stations for wireless operations in the 3650-3700 MHz
       band. However, RSISP's license states that "[t]his license does not
       authorize any operation of a fixed or base station that is not posted
       by the FCC as a registered fixed or base station on ULS . . . . To
       register individual fixed and base stations the licensee must file FCC
       Form 601 and Schedule M with the FCC."^

    3. On March 16, 2012, in response to a complaint of interference, agents
       from the Enforcement Bureau's San Juan Office (San Juan Office)
       conducted monitoring in the 3650-3700 MHz band and identified two
       transmissions on or adjacent to 3650 MHz. Using direction-finding
       techniques, the agents located the sources of these transmissions to
       two radio communications sites at 18-o 02 34.99 North 066 31 46.31
       West  in Juana Diaz, Puerto Rico and 17-o 59 12.9 North 066 37 0.46
       West in Ponce, Puerto Rico, respectively. The agents then telephoned
       Mr. Schmidt, who confirmed that RSISP was operating transmitters at
       these two sites. The agents consulted the Uniform Licensing System
       (ULS) and determined that neither of these two sites had been posted
       as registered stations with the Commission.^

    4. On March 19, 2012, the San Juan Office sent RSISP a Warning via
       email.^ The Warning informed RSISP that operations in the 3650-3700
       MHz band without any registered fixed or base stations was not
       authorized by its license and that it must cease operations until its
       registrations were posted by the Commission. On March 19, 2012, Mr.
       Schmidt responded via email that he would "start to take these sites
       offline beginning from the Juana Diaz site . . . . Please give me some
       time to shut down because it is in a very remote place."^

    5. On March 21, 2012, agents from the San Juan Office determined that
       RSISP was still operating transmitters at the Ponce and Juana Diaz
       sites on 3660.9 MHz and 3666 MHz, respectively. Later that day, Mr.
       Schmidt admitted to agents over the telephone that the two sites were
       still in operation and stated that action would be taken promptly. On
       March 22, 2012, Mr. Schmidt informed an agent from the San Juan Office
       via email that all RSISP sites were out of service.^ Regarding the
       Juana Diaz site, Mr. Schmidt wrote it "is the only one that is
       disabled with program,"^ by which he meant that the site was disabled
       remotely via software.

    6. On April 26, 2012, the Wireless Telecommunications Bureau accepted
       RSISP's applications to register the Ponce and Juana Diaz sites for
       Call Sign WQMN655.^

   III. DISCUSSION

    7. 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 Inconsistent with Authorization

    8. 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 except under and in accordance with a license.^ Section 1.903
       of the Rules states that a "[s]tation in the Wireless Radio Service
       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 . . . . The holding of
       an authorization does not create any rights beyond the terms,
       conditions and period specified in the authorization."^ Section
       90.1307 of the Rules states, "[t]he 3650-3700 MHz band is licensed on
       the basis of non-exclusive nationwide licenses. . . . A licensee
       cannot operate a fixed or base station before registering it under its
       license and licenses . . . ."^ The license for Station WQMN655 also
       clearly states that it "does not authorize any operation of a fixed or
       base station that is not posted by the FCC as a registered fixed or
       base station" in the ULS.^ Agents from the San Juan Office determined
       that RSISP operated radio transmitters in the 3650-3700 MHz band from
       sites in Juana Diaz and Ponce, Puerto Rico on March 16, and again on
       March 21, 2012. Mr. Schmidt also admitted to operating transmitters at
       these two sites during this time. The Juana Diaz and Ponce sites were
       not posted or registered in the ULS for Call Sign WQMN655 until April
       26, 2012. Thus, based on the evidence before us, we find that Mr.
       Schmidt dba RSISP  apparently willfully and repeatedly violated
       Section 301 of the Act and Sections 1.903 and 90.1307 of the Rules by
       operating transmitters in the 3650-3700 MHz band at two sites without
       Commission authorization.

    B. Proposed Forfeiture Amount

    9. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for construction or
       operation at an unauthorized location 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.^ In doing so, we find that the
       violations here warrant a proposed forfeiture above the base amount.
       Commission records show that the San Juan Office previously issued a
       Warning to RSISP for operation of its transmitters at Juana Diaz and
       Ponce, Puerto Rico.^ The fact that RSISP continued to operate after
       being put on notice that its operations were not authorized by its
       license, demonstrates a deliberate disregard for the Commission's
       requirements. Thus, we find that an upward adjustment of the
       forfeiture in the amount of $4,000 ($2,000 for each site) is
       warranted.^ Applying the Forfeiture Policy Statement, Section 1.80 of
       the Rules, and the statutory factors to the instant case, we conclude
       that Mr. Schmidt dba RSISP is apparently liable for a total forfeiture
       in the amount of $12,000, consisting of $6,000 each for the Juana Diaz
       and Ponce locations.

   IV. ORDERING CLAUSES

   10. 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, Robert Schmidt dba
       RSISP 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 Sections 1.903 and 90.1307 of the
       Commission's rules.^

   11. 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, Robert
       Schmidt dba RSISP SHALL PAY the full amount of the proposed forfeiture
       or SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

   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. Robert Schmidt dba RSISP 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.

   13. 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, [1]ARINQUIRIES@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, South
       Central Region, San Juan Office, US Federal Building Room 762, San
       Juan, PR 00918-1731, and include the NAL/Acct. No. referenced in the
       caption. Robert Schmidt dba RSISP also shall e-mail the written
       response to SCR-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 First Class Mail and Certified
       Mail, Return Receipt Requested, to Robert Schmidt dba RSISP  at
       Number 928  Hostos Ave, Ponce, PR 00716.

   FEDERAL COMMUNICATIONS COMMISSION

   Reuben Jusino

   Resident Agent

   San Juan Office

   South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301; 47 C.F.R. SS 1.903, 90.1307.

   ^ See Universal Licensing System, License Call Sign WQMN655.

   ^ Id.

   ^ RSISP, Warning of Unlicensed Operations (Mar. 19, 2012) (on file in
   EB-FIELDSCR-12-00001225) (Warning).

   ^ Email from Robert Schmidt to Reuben Jusino, Resident Agent, San Juan
   Office (Mar. 19, 2012, 5:26 P.M.) (on file in EB-FIELDSCR-12-00001225).

   ^ Email from Robert Schmidt to Reuben Jusino, Resident Agent, San Juan
   Office (Mar. 22, 2012, 1:35 A.M.) (on file in EB-FIELDSCR-12-00001225).

   ^ Id.

   ^ See Application Numbers 0004712103 and 0004712285 for License Call Sign
   WQMN655.

   ^ 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. SS 1.903(a), (b).

   ^ 47 C.F.R. S 90.1307.

   ^ See Universal Licensing System, License Call Sign WQMN655.

   ^ 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).

   ^ See Warning, supra note 4.

   ^ See, e.g., Robert Brown, Memorandum Opinion and Order, 27 FCC Rcd 6975
   (Enf. Bur. 2012) (upholding upward adjustment of forfeiture by 50 percent
   because violator received one prior warning); Lloyd Morris, Memorandum
   Opinion and Order, 27 FCC Rcd 6979 (Enf. Bur. 2012) (upholding upward
   adjustment of forfeiture by 50 percent because violator received one prior
   warning).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
   1.903, 90.1307.

   ^ 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. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 13-174

                                       5

   Federal Communications Commission DA 13-174

References

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