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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of General Communications Inc. Former Licensee of Station
WPSN343 ) ) ) ) ) ) File No.: EB-SED-12-00001715 NAL/Acct. No.:
201332100010 FRN: 0002709624
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 21, 2013 Released: March 21, 2013
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find General
Communications Inc. (GCI),^ former licensee of Commercial Mobile Radio
Service (CMRS) station WPSN343, Madison, Wisconsin, apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000) for
its apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended (Act),^ and Section 1.903(a) of
the Commission's rules (Rules).^ The noted apparent violation involves
GCI's operation of its CMRS station for approximately nine months
without Commission authority.
II. background
2. On June 26, 2001, GCI was granted a license to operate station WPSN343
for ten years through June 26, 2011, the expiration date of the
station's license. On April 29, 2011, GCI timely filed an application
to renew the license for station WPSN343.^ The Commission's Wireless
Telecommunications Bureau (Wireless Bureau) returned the renewal
application by letter dated June 15, 2011,^ citing GCI's failure to
file the notification of construction for station WPSN343 required by
Section 1.946(d) of the Rules.^ In the WPSN343 Notice of Return, GCI
was instructed to file within 60 days the notification of construction
for station WPSN343, a request for waiver of the construction
notification filing deadline, and an associated amendment to its
renewal application.^ GCI did not file either the required
construction notification or amendment, resulting in the dismissal of
its renewal application on September 3, 2011.^
3. On September 6, 2011, GCI sought reconsideration of the dismissal of
the license renewal applications for WPSN343 and requested
reinstatement of the WPSN343 station license.^ On March 22, 2012, GCI
filed a request for Special Temporary Authority (STA) to operate
station WPSN343, which the Wireless Bureau granted the following day
under the call sign WQPA930.^ Thereafter, on April 12, 2012, GCI
submitted an application for a new station license to replace the
cancelled WPSN343 license, which was granted under the call sign
WQPJ597.^ Because it appeared that GCI had operated station WPSN343
without Commission authorization after the expiration of the station
license, the Wireless Bureau referred this matter to the Enforcement
Bureau for investigation and possible enforcement action.
4. On December 14, 2012, the Enforcement Bureau's Spectrum Enforcement
Division issued a letter of inquiry (LOI) to GCI, directing GCI to
submit a sworn written response to a series of questions relating to
GCI's operation of station WPSN343.^ GCI responded to the LOI on
January 3, 2013.^ In its LOI Response, GCI acknowledges that it failed
to amend its WPSN343 license renewal application, as required by the
WPSN343 Notice of Return,^ and that it continued to operate the
station after June 26, 2011, the expiration date of the station
license, until March 23, 2012, the date its STA was granted.^ GCI
asserts that it believed its continued operation of the station was
permissible because GCI's Petition remained pending.^
III. DISCUSSION
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-granted authorization.^ As a Commission licensee,
GCI was required to maintain its authorization in order to operate
station WPSN343. Although GCI timely filed an application for renewal
of the WPSN343 station license, GCI never submitted the required
notification of construction for the station, or amended the WPSN343
renewal application, as required by the WPSN Notice of Return.
Consequently, the WPSN343 renewal application was dismissed effective
September 3, 2011, and the license automatically terminated as of its
June 26, 2011 expiration date.^
6. We find no merit to GCI's argument that it was permitted to continue
to operate station WPSN343 after the expiration of the station license
due to the pendency of its Petition. Pursuant to Section 1.102(b)(1)
and (b)(2) of the Rules, the Wireless Bureau may, in its discretion,
stay the effect of an action taken pursuant to delegated authority
pending the disposition of a petition for reconsideration, but is not
required to do so.^ In this instance, such a stay was neither
requested by GCI nor granted by the Wireless Bureau on its own motion.
Accordingly, we find that by operating station WPSN343 without
authority after the station license had expired, GCI apparently
violated Section 301 of the Act and Section 1.903(a) of the Rules.^
7. Section 503(b) of the Act^ and Section 1.80(a) of the Rules^ provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Rules, and
"repeated" means more than once or for more than one day.^ Based on
the record before us, it appears that GCI's apparent violation of
Section 301 of the Act and Section 1.903(a) of the Rules is both
willful and repeated.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors such as "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."^ Section 1.80 of the Rules^ sets a base forfeiture amount of
$10,000 for operation of a station without Commission authority. We
note that in this instance GCI did not pursue the renewal of its
station authorization with reasonable diligence, failing to submit the
documentation required by the WPSN343 Return Notice. Accordingly, we
propose a forfeiture in the amount of $10,000 for GCI's continued
operation of station WPSN343 after June 26, 2011, the expiration date
of the station license, until March 23, 2012, the date its STA was
granted.
Iv. ordering clauses
9. 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 of the Commission's rules,^ General Communications Inc. IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for the 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.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules,^ ^ within thirty (30) calendar days after the
release date of this Notice of Apparent Liability for Forfeiture,
General Communications Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture consistent with paragraph 14
below.
11. 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. General Communications Inc. shall send
electronic notification of payment to Neal McNeil at
Neal.McNeil@fcc.gov, Karen Mercer at [1]Karen.Mercer@fcc.gov, and
Samantha Peoples at Sam.Peoples@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.
12. Any request for full payment under the installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 445 12^th 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, 1-8777-480-3201, or by email, ARINQUIRIES@fcc.gov.
13. 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
Section 1.80(f)(3) and 1.16 of the Rules.^ The written statement must
be mailed to the Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, DC 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must include
the NAL/Account Number referenced in the caption. The statement must
also be emailed to Neal McNeil at [2]Neal.McNeil@fcc.gov and Karen
Mercer at [3]Karen.Mercer@fcc.gov. 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; 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.
14. IT IS FURTHERED ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent first class mail and certified
mail return receipt requested to Verne Vlack, President, General
Communications Inc., 2880 Commerce Park Drive, Madison, WI 53719.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief
Spectrum Enforcement Division
Enforcement Bureau
^ GCI is a family-owned communications equipment retailer and one of the
country's largest Kenwood dealers, with locations in Madison and
Milwaukee, Wisconsin. See http://www.gencomm.com (last visited Feb. 11,
2013).
^ 47 U.S.C. S 301.
^ 47 C.F.R. S 1.903(a).
^ See File No. 0004709945, filed by General Communications Inc. (Apr. 29,
2011).
^ See Notice of Return, ULS Reference No. 5173395 (June 15, 2011) (WPSN343
Notice of Return). Section 1.946(d) of the Rules requires a licensee that
has met its construction deadline in a timely manner to notify the
Commission within 15 days of the expiration of the construction period
that it has constructed the license. 47 C.F.R S 1.946(d) (providing that
"[a] licensee who commences service or operation within the construction
period ... must notify the Commission by filing FCC Form 601 [and] [t]he
notification must be filed within 15 days of the expiration of the
applicable construction or coverage period").
^ See 47 C.F.R. S 1.946(d).
^ See WPSN343 Notice of Return (stating that "[i]f a response has not been
received within the 60 day time frame, the ULS system will automatically
dismiss the application.").
^ See Notice of Dismissal, ULS Reference No. 5213336 (Sept. 7, 2011);
Wireless Telecommunications Bureau Site-By-Site Action, Public Notice,
Report No. 7137 at 11 (Sept. 7, 2011). Because GCI did not submit the
required information by the date specified, the WPSN343 station license
automatically terminated as of its June 26, 2011 expiration date.
^ See Petition for Reconsideration, File Nos. 0004709945, filed by General
Communications Inc. (Sept. 6, 2011) (Petition). In the Petition, GCI
asserted that station WPSN343 was constructed within one month of the
grant of the station license, and that GCI was not aware of the obligation
to submit a notification of completion of construction. See id. GCI also
contacted the Mobility Division in February 2012 to determine what should
be done with respect to its expired license. See Letter from Cyndi Thomas,
Assistant Chief, Mobility Division, FCC Wireless Telecommunications
Bureau, to David Owen, General Communications Inc. (Feb. 14, 2013)
(February 14, 2013 Letter) at 2. The Mobility Division directed GCI to
refile a renewal application for station WPSN343, submit the required
construction notification for the station, along with a request for waiver
of the applicable filing deadline, and to submit an STA request if GCI
wished to continue operating the station while its Petition was pending.
See id. In addition, it contacted GCI in late March 2012, after GCI filed
its STA request for WPSN343, to remind the licensee that it still needed
to file a renewal application and construction notification for the
station. See id. GCI subsequently informed Mobility Division staff that
GCI intended to allow the STA to expire and that it would submit an
application for a new license for its operations under WPSN343. See id. at
2-3.
^ See FCC File No. 0005130272, filed by General Communications Inc.
(Mar. 22, 2012). The 60 day term of the STA expired on May 21, 2012. See
id. The Wireless Bureau granted the STA without prejudice to any
enforcement action related to the unauthorized operation of station
WPSN343. See id.
^ FCC File No. 0005161221, filed by General Communications Inc. (Apr. 12,
2012). On February 14, 2013, the Wireless Bureau dismissed GCI's Petition
as moot because GCI elected to replace its expired license for WPSN343
with a new authorization for the same facilities in virtually the same
locations as those previously authorized for station WPSN343. See February
14, 2013 Letter at 3-4.
^ See Letter from John D. Poutasse, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Mr. Verne Vlack, President, General
Communications Inc. (Dec. 14, 2012) (on file in EB-SED-12-00001715).
^ See Letter from Gregory Vlack, Vice-President, General Communications
Inc., to Spectrum Enforcement Division, FCC Enforcement Bureau (Jan. 3,
2013) (on file in EB-SED-12-00001715) (LOI Response).
^ Id. at 1.
^ Id. at 2.
^ Id.
^ 47 U.S.C. S 301; 47 C.F.R. S 1.903(a).
^ See supra note 8.
^ See 47 C.F.R. S 1.102(b)(1) ("Non-hearing or interlocutory actions taken
pursuant to delegated authority shall, unless otherwise ordered by the
designated authority, be effective upon release of the document containing
the full text of such action, or in the event such a document is not
released, upon release of a public notice announcing the action in
question."). See also id S 1.102(b)(2) ("If a petition for reconsideration
of a non-hearing action is filed, the designated authority may in its
discretion stay the effect of its action pending disposition of the
petition for reconsideration.").
^ GCI suggests in its LOI Response that Mobility Division staff encouraged
GCI to file for a new station authorization to replace station WPSN343
rather than filing a second renewal application and a construction
notification for the station (LOI Response at 2). That suggestion,
however, is contradicted by the Mobility Division's finding in the
February 14, 2013 Letter. See supra note 9.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80(a).
^ See 47 U.S.C. S 312(f)(1),(2). See also Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387-4388, para. 5 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under Section 503(b) of the Act).
^ 47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. SS 0.111, 0.311, 1.80.
^ 47 C.F.R. S 1.80.
^ 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.
^ Id. SS 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-523
4
Federal Communications Commission DA 13-523
References
Visible links
1. mailto:Karen.Mercer@fcc.gov
2. mailto:Neal.McNeil@fcc.gov
3. mailto:Karen.Mercer@fcc.gov