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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




                                FORFEITURE ORDER

   Adopted: October 23, 2013 Released: October 23, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of three thousand dollars ($3,000) to Robert Schmidt dba
       RSISP (RSISP), licensee of Station WQMN655, in Ponce, Puerto Rico, for
       willfully and repeatedly violating Section 301 of the Communications
       Act of 1934, as amended (Act), and Sections 1.903 and 90.1307 of the
       Commission's rules (Rules).^ The noted violations involved RSISP's
       failure to register two communications sites prior to putting them
       into operation.

   II. BACKGROUND

    2. On February 12, 2013, the Enforcement Bureau's San Juan Office (San
       Juan Office) issued a Notice of Apparent Liability for Forfeiture
       (NAL) ^ for twelve thousand dollars ($12,000) to RSISP for operating
       transmitters in the 3650-3700 MHz band at two sites without Commission
       authorization.^ As reflected in the NAL, although the Rules and terms
       of RSISP's license require registration of all fixed or base stations
       prior to operation, RSISP operated radio transmitters in the 3650-3700
       MHz band from sites in Juana Diaz and Ponce, Puerto Rico, on March 16
       and 21, 2012.^ The Juana Diaz and Ponce sites were not posted or
       registered in the FCC's Universal Licensing System (ULS) for Call Sign
       WQMN655 until April 26, 2012.^ In response to the NAL, RSISP requests
       cancellation or reduction of the proposed forfeiture because: (1) it
       erroneously thought it had registered its sites prior to March 2012;
       (2) it thought it had received permission to operate temporarily
       without authorization while it transitioned its customers to another
       system; and (3) it cannot afford to pay the $12,000 forfeiture.^

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
       Forfeiture Policy Statement.^ In examining RSISP's response, Section
       503(b)(2)(E) 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.^

    4. We affirm the NAL's finding that RSISP violated Section 301 of the Act
       and Sections 1.903 and 90.1307 of the Rules.^ 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"; and that "[t]he 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," and that "[a]
       licensee cannot operate a fixed or base station before registering it
       under its license . . . ."^ 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.^

    5. It is undisputed that RSISP operated radio transmitters in the
       3650-3700 MHz band from sites in Juana Diaz and Ponce, Puerto Rico, on
       March 16 and March 21, 2012. It is also undisputed that the Juana Diaz
       and Ponce sites were not posted or registered in the ULS for Call Sign
       WQMN655 until April 26, 2012. In its response to the NAL, RSISP
       attempts to justify the violations based on its erroneous
       understanding about the status of the registration and its ability to
       operate temporarily, but such explanations do not serve to justify or
       mitigate the violations. Although RSISP submitted amendments to
       register its sites prior to March 15, 2012, a licensee cannot operate
       in conformity with its amendment applications based on the assumption
       that the applications will later be granted.^ Moreover, its erroneous
       beliefs that it had registered its sites or that it could operate on
       an unlicensed basis until it transitioned its customers to other
       systems^ are irrelevant to whether it willfully operated on an
       unlicensed basis. 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.^ RSISP clearly
       intended to operate its systems from the Juana Diaz and Ponce sites on
       March 16 and March 21, 2012.^ Thus, its violations were willful and
       repeated. Therefore, based on the evidence before us, we conclude that
       RSISP 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.

    6. RSISP, in its response to the NAL, also asserts that it is unable to
       pay the $12,000 forfeiture because of its financial circumstances.
       With regard to an individual's or entity's inability to pay claim, the
       Commission has determined that, in general, gross revenues are the
       best indicator of an ability to pay a forfeiture.^ Based on the
       financial documents provided by RSISP, we find sufficient basis to
       reduce the forfeiture to $3,000.^ However, we caution RSISP that a
       party's inability to pay is only one factor in our forfeiture
       calculation analysis, and is not dispositive.^ We have previously
       rejected inability to pay claims in cases of repeated or otherwise
       egregious violations.^ Therefore, future violations of this kind may
       result in significantly higher forfeitures that may not be reduced due
       to RSISP's financial circumstances.

   IV. ORDERING CLAUSES

    7. 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, Robert Schmidt
       dba RSISP IS LIABLE FOR A MONETARY FORFEITURE in the amount of three
       thousand dollars ($3,000) for violations of Section 301 of the Act and
       Sections 1.903 and 90.1307 of the Commission's rules.^

    8. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) 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 Act.^  Robert Schmidt dba RSISP shall send
       electronic notification of payment to SCR-Response@fcc.gov on the date
       said payment is made. 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.

   8. Any request for making full payment over time 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.

   9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to Robert
   Schmidt dba RSISP at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

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

   ^ Robert Schmidt dba RSISP, Notice of Apparent Liability for Forfeiture,
   28 FCC Rcd 1082 (Enf. Bur. 2013) (NAL). A comprehensive recitation of the
   facts and history of this case can be found in the NAL and is incorporated
   herein by reference.

   ^ Id. at 1082-83, paras. 2-5.

   ^ Id. at 1083, para. 6.

   ^ Letter from Robert Schmidt to the San Juan Office, South Central Region,
   Enforcement Bureau at 1-2 (filed March 20, 2013, in
   EB-FIELDSCR-12-00001225) (NAL Response).

   ^ 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).

   ^ See NAL, supra note 2.

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. S 1.903(a) & (b).

   ^ 47 C.F.R. S 90.1307.

   ^ See Universal Licensing System, License Call Sign WQMN655.

   ^ See 47 U.S.C. S 301. See also Ace of Hearts Disc Jockey Service, Inc.,
   Memorandum Opinion and Order, 28 FCC Rcd 1095 (Enf. Bur. 2013).

   ^ We note that the written warning provided to RSISP stated "ANY
   OPERATIONS IN THE 3650-3700 MHz BAND MUST CEASE UNTIL YOUR REGISTRATIONS
   ARE POSTED BY THE FCC." RSISP, Warning of Unlicensed Operations (Mar. 19,
   2012) (on file in EB-FIELDSCR-12-00001225) (emphasis in original). The
   agent also stated in an e-mail on March 21, 2012, that "[a]ll non
   registered sites should be taken off the air immediately." See e-mail from
   Reuben Jusino, Resident Agent, San Juan Office, South Central Region,
   Enforcement Bureau, to Robert Schmidt (Mar. 21, 2012, 5:14 p.m.) (on file
   in EB-FIELDSCR-12-00001225).

   ^ 47 U.S.C. S 312(f)(1).

   ^ RSISP also argues that a reduction of the forfeiture is justified
   because (it asserts) it was working to stop operations on March 21, 2012,
   and succeeded in doing so at 1:35 a.m. on March 22, 2013. See NAL Response
   at 1-2. We disagree. The fact that RSISP ceased operations in the early
   morning hours of March 22, 2012, does not negate the fact that it operated
   on March 21, 2012, in violation of the Rules.

   ^ See Local Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000)
   (forfeiture not deemed excessive where it represented approximately 7.9
   percent of the violator's gross revenues); Hoosier Broadcasting
   Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
   deemed excessive where it represented approximately 7.6 percent of the
   violator's gross revenues).

   ^ This forfeiture amount falls within the percentage range that the
   Commission has previously found acceptable. See supra note 19. In its
   response to the NAL (at 1-2), RSISP states that a reduced forfeiture
   should be considered because its failed efforts to register its sites
   prior to March 16, 2012, nevertheless demonstrated good faith attempts to
   comply with the Rules. Because we are already reducing the forfeiture
   based on RSISP's inability to pay, and the reduction provided in this case
   is well beyond any reduction it would otherwise receive for its good faith
   argument, we need not address this claim. See, e.g., Entertainment Media
   Trust, Forfeiture Order, 28 FCC Rcd 2181, 2184 & n.22 (Enf. Bur. 2013).

   ^ See 47 U.S.C. S 503(b)(2)(E) (requiring the Commission to 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).

   ^ See, e.g., Whisler Fleurinor, Forfeiture Order, 28 FCC Rcd 1087 (Enf.
   Bur. 2013) (affirming $25,000 forfeiture and rejecting inability to pay
   claim because violator was previously afforded a reduction based on
   inability to pay, but later committed the same violation). Accord Kevin W.
   Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that
   violator's repeated acts of malicious and intentional interference
   outweigh evidence concerning his ability to pay claim), aff'd, Memorandum
   Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013) (further request for
   reconsideration pending); Hodson Broadcasting Corp., Forfeiture Order, 24
   FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee's continued
   unauthorized operation outweighed its inability to pay claim).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4), 1.903, 90.1307.

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ 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.

   Federal Communications Commission DA 13-2050

   2

   Federal Communications Commission DA 13-2050

References

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