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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Acumen Communications Licensee of Station WQJF635, Los
Angeles, CA ) ) ) ) ) ) ) File No.: EB-FIELDWR-13-00006185 NAL/Acct. No.:
201432900001 FRN: 0016049017
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: December 11, 2013 Released: December 11, 2013
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Acumen Communications (Acumen), licensee of Station
WQJF635 in Los Angeles, California, apparently willfully and
repeatedly violated Section 301 of the Communications Act of 1934, as
amended (Act),^ and Sections 1.903(a) and 90.403(e) of the
Commission's rules (Rules),^ by operating Station WQJF635 on a
frequency not authorized on its license, and by failing to take
reasonable precautions to avoid causing harmful interference. We
conclude that Acumen is apparently liable for a forfeiture in the
amount of seventeen thousand dollars ($17,000). In addition, we direct
Acumen to submit, no later than thirty (30) calendar days from the
date of this NAL, a statement, signed under penalty of perjury,
confirming compliance with the Act, the Rules, and its license.
II. BACKGROUND
2. On January 17, 2013, in response to a complaint from the United States
Coast Guard (USCG) concerning interference to their operations in the
Los Angeles, California area in the 150 MHz VHF band, an agent from
the Enforcement Bureau's Los Angeles Office (Los Angeles Office),
using radio direction-finding methods, determined that the continuous
signal that was causing interference to the USCG was coming from the
Mount Wilson communications site in Los Angeles, California. The next
day, Los Angeles agents further determined that the specific source of
the ongoing interference was coming from the Acumen Communications
building located at 123 CBS Lane on Mount Wilson. Specifically, the
agents located the interfering signal, transmitting on 150.6973 MHz,
to the Acumen transmitter and equipment rack, which was labeled as
frequency 151.580 MHz.
3. After being contacted by phone by Los Angeles Office management,
Acumen personnel contacted the Los Angeles agents at the Acumen
transmitter site. The agents explained to the Acumen personnel their
findings regarding the source of the interference to USCG
communications. The Acumen personnel then turned off the offending
transmitter remotely and the interference to the USCG ceased. When
queried by the agents, Acumen stated that the radio station in
question was operating pursuant to the Station WQJF635 authorization.
According to the Station WQJF635 authorization in effect at the time
of the investigation, the only VHF frequencies it was authorized to
operate on, from any location, were VHF frequencies 152.285 MHz and
157.545 MHz; the authorization did not include operation on frequency
151.580 MHz.^
4. On January 30, 2013, the Los Angeles Office issued Acumen a Notice of
Violation (NOV) for failing to operate Station WQJF635 in accordance
with its authorization, and for failing to take reasonable precautions
to avoid causing interference to licensed services, by operating
Station WQJF635 on frequency 151.580 MHz and generating a spurious
emission on frequency 150.6973 MHz.^ In its NOV Response, Acumen did
not deny that the Station was generating the spurious signal on
150.6973, but stated that the transmitter was operating "on frequency
152.285 [MHz] and . . . that the transmitter was transmitting a
spurious signal about .8 [MHz] both sides of the designated
[frequency] across the band and . . . [it was] moving all over.
(Completely unstable)." ^ ^
III. DISCUSSION
5. 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 on Unauthorized Frequency
6. The evidence in this case is sufficient to establish that Acumen
violated Section 301 of the Act and Section 1.903(a) of the Rules.
Section 301 of the Act prohibits the use or operation of any apparatus
for the transmission of energy or communications or signals by radio,
except under and in accordance with the Act and with a license granted
under the provisions of the Act.^ Section 1.903(a) of the Rules
requires that stations in the Wireless Radio Services 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.^ On January 17 and 18, 2013, Los Angeles agents observed
that Acumen was operating radio equipment that was transmitting a
continous signal that was creating a spurious emission, causing
interference to USCG communications. Although Acumen states in its NOV
Response that the malfunctioning transmitter was operating on its
assigned frequency (i.e., 152.285 MHz),^ the direct evidence obtained
during the investigation by the Los Angeles agents (which included
screen captures of spectrum analyzer measurements and frequency labels
on the equipment) shows otherwise. Specifically, the agents confirmed
that the fundamental frequency in use was frequency 151.580 MHz, a
frequency not authorized by the Station WQJF635 license; and that a
spurious signal causing interference to USCG operations in the 150 MHz
band was observed on frequency 150.6973 MHz, a frequency approximately
0.8 MHz below the center frequency of 151.580 MHz, which is within the
range of the spurious signal. Indeed, in its NOV Response, Acumen did
not dispute that it was the cause of the interfering spurious signal,
and it also acknowledged that the spurious signal was approximately
0.8 MHz on both sides of the fundamental frequency.^ Based on the
evidence before us, we find that Acumen apparently willfully and
repeatedly violated Section 301 of the Act and Section 1.903(a) of the
Rules by operating Station WQJF635 on a frequency not authorized by
its license.
A. Failing to Take Reasonable Precautions to Avoid Interference
7. The evidence in this case is sufficient to establish that Acumen also
violated Section 90.403(e) of the Rules. Section 90.403(e) of the
Rules requires that "[l]icensees shall take reasonable precautions to
avoid causing harmful interference. This includes monitoring the
transmitting frequency for communications in progress and such other
measures as may be necessary to minimize the potential for causing
interference."^ On January 17 and 18, 2013, Los Angeles Office agents
observed that Acumen was operating radio equipment that was
transmitting a continous signal, creating a spurious emission, and
causing harmful interference to USCG communications. In its NOV
Response, Acumen did not dispute it was the cause of the interference
and proffered no evidence that it was making any effort to monitor its
operations or take any other reasonable precautions to avoid causing
interference. The result of Acumen's failures was constant
interference to USCG communications. Based on the evidence before us,
we find that Acumen apparently willfully and repeatedly violated
Section 90.403(e) of the Rules by failing to take reasonable
precautions to avoid causing harmful interference.^
A. Proposed Forfeiture and Reporting Requirement
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation on an
unauthorized frequency, or unauthorized emissions, is $4,000; and the
base forfeiture amount for interference is $7,000.^ 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 amounts.
As the record reflects, Acumen's unauthorized operation produced a
spurious signal, which caused constant harmful interference to USCG
communications; and which Acumen was unaware of until contacted by the
Los Angeles Office. Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Acumen is apparently liable for a total forfeiture in
the amount of seventeen thousand dollars ($17,000).
9. We further order Acumen to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Acumen, stating that it is operating Station
WQJF635 in compliance with Section 301 of the Act,^ and with Sections
1.903(a) and 90.403(e) of the Rules.^ Acumen should also provide
details of the specific actions it has taken to come into compliance.
This statement must be provided to the Los Angeles Office at the
address listed in paragraph 12, below, within thirty (30) calendar
days of the release date of this NAL.
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, Acumen
Communications is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of seventeen thousand dollars ($17,000) for
violation of Section 301 of the Act, and Sections 1.903(a) and
90.403(e) of the 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 and Order,
Acumen Communications SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. IT IS FURTHER ORDERED that Acumen Communications SHALL SUBMIT a
written statement, as described in paragraph 9, above, within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statement must be mailed to
Federal Communications Commission, Enforcement Bureau, Western Region,
Los Angeles District Office, 18000 Studebaker Rd., Suite 660,
Cerritos, CA 90703. Acumen Communications shall also e-mail the
written statement to WR-Response@fcc.gov.
13. 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. Acumen Communications shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made. 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.
14. 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,
ARINQUIRIES@fcc.gov.
15. 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, Western
Region, Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos,
CA 90703, and include the NAL/Acct. No. referenced in the caption.
Acumen Communications also shall e-mail the written response to
WR-Response@fcc.gov.
16. 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 principles (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.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Acumen Communications, at
10670 S. La Cienega Blvd., Suite C, Inglewood, CA 90304.
FEDERAL COMMUNICATIONS COMMISSION
Charles A. Cooper
District Director
Los Angeles Office
Western Region
Enforcement Bureau
^ 47 U.S.C. S 301.
^ 47 C.F.R. SS 1.903(a), 90.403(e).
^ See Station WQJF635 Authorization, effective May 4, 2012.
^ See Acumen Communications, Notice of Violation, V201332900008 (Jan. 30,
2013).
^ See Response to Notice of Violation of Acumen Communications at 1 (Mar.
6, 2013) (on file in EB-FIELDWR-13-00006185) (NOV Response).
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., 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. S 1.903(a).
^ NOV Response at 1.
^ Id.
^ 47 C.F.R. S 90.403(e).
^ See, e.g., Portland Taxicab Company, Forfeiture Order, 19 FCC Rcd 22511
(Enf. Bur. 2004) (assessing a $4,000 forfeiture to a land mobile licensee
for operating on unauthorized frequencies in violation of Section 1.903(a)
of the Rules; a $7,000 forfeiture for transmitting spurious emissions
resulting in harmful interference in violation of Section 90.403(e) of the
Rules; and a $1,000 forfeiture for failing to indentify in violation of
Section 90.425(a) of the Rules), aff'd, Memorandum Opinion and Order, 22
FCC Rcd 1059 (Enf. Bur. 2007).
^ 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 301.
^ 47 C.F.R. S 1.903(a).
^ 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(a), 90.403(e).
^ 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 13-2305
6
Federal Communications Commission DA 13-2305