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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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