Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Argos Net, Inc. Caguas, PR ) ) ) ) ) ) File No:
EB-11-SJ-0055 File No: EB-11-SJ-0062 NAL/Acct. No.: 201232680002 FRN:
0021525951
MEMORANDUM OPINION AND ORDER
Adopted: February 7, 2014 Released: February 7, 2014
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended (Act),^ and Section
1.106 of the Commission's rules (Rules),^ we grant in part and deny in
part the petition for reconsideration (Petition) filed by Argos Net,
Inc. (Argos Net), an operator of Unlicensed National Information
Infrastructure (U-NII) transmission systems in Puerto Rico.^ Argos Net
seeks reconsideration of the Forfeiture Order issued by the
Enforcement Bureau's South Central Region in this proceeding.^ The
Forfeiture Order imposed a monetary forfeiture in the amount of twenty
thousand dollars ($20,000) against Argos Net for willfully and
repeatedly violating Section 301 of the Act.^ The noted violations
involved Argos Net's operation of intentional radiators not in
accordance with Part 15 of the Rules^ and without a license. As
discussed below, we uphold the Bureau's prior finding of violation,
but reduce the forfeiture to $12,000.
II. BACKGROUND
2. Argos Net does not dispute the violations but requests that the
Commission reduce further the forfeiture amount. Argos Net asserts
that it cooperated fully with the investigation and helped Commission
agents identify the operators of other U-NII devices in the area.
Accordingly, it requests a downward adjustment on the basis of good
faith and voluntary disclosure of information. Argos Net also states
that the Commission has taken into consideration a violator's
operations, market competition, and profitable history in order to
determine the reasonableness of a proposed forfeiture. Argos Net
claims that with its operating deficit and current debt obligations,
payment of $20,000 would "impose further burdens on its already
delicate financial situation and operations" and requests further
reduction of the forfeiture. To support its request, Argos Net
provides new documentation regarding its finances for 2012.
III. DISCUSSION
3. Petitions for reconsideration are granted only in limited
circumstances. Reconsideration is appropriate only where the
petitioner either demonstrates a material error or omission in the
underlying order, or raises additional facts not known or not existing
until after the petitioner's last opportunity to present such
matters.^ A petition for reconsideration that reiterates arguments
that were previously considered and rejected will be denied.^ As
discussed below, we find that Argos Net has provided updated financial
information, which prompts us to reduce the forfeiture to $12,000.
4. Generally, the Commission has found that "a licensee's gross revenues
are the best indicator of its ability to pay a forfeiture."^ The
Commission, citing PJB Communications, has also held that "[i]f gross
revenues are sufficiently great . . . the mere fact that a business is
operating at a loss does not itself mean that it cannot afford to pay
a forfeiture."^ Such is the case here. As Argos Net notes,^ the
Commission in First Greenville Corp. looked to other factors,
including profits and losses, to determine ability to pay.^ That case,
however, involved a licensee in severe financial distress that
remained in business only because of substantial financial support
from the licensee's sole shareholder.^ Argos Net has failed to
demonstrate that it is experiencing a comparable level of financial
distress or that it otherwise should qualify for an exception to our
gross revenues policy. For example, unlike First Greenville Corp.,
Argos Net has not indicated that it is unable to secure funding to
cover its losses, or that its owners have personally guaranteed loans
on its behalf.^ However, a review of the updated financial information
provided by Argos Net in response to the Forfeiture Order convinces us
that reduction of the forfeiture to $12,000 is warranted.^
Accordingly, we grant in part the petition for reconsideration filed
by Argos Net and reduce the forfeiture to $12,000 on the basis of
inability to pay.^
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED, pursuant to Section 405 of the
Communications Act of 1934, as amended,^ and Section 1.106 of the
Commission's rules,^ that the Petition for Reconsideration filed by
Argos Net, Inc. IS GRANTED IN PART AND DENIED IN PART.
6. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,^
Argos Net, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twelve thousand dollars ($12,000) for violation of Section 301 of the
Act.^
7. 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 Memorandum Opinion and 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.^ Argos Net, Inc. shall send
electronic notification of payment to SCR-Response@fcc.gov on the date
said payment is made.
8. 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.
9. 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.
10. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Argos Net, Inc. at Oficina #212, Calle Acosta #32,
Caguas, PR, 00725 and to its counsel, Edwin Quinones and Alejandro J.
Figueroa Ramirez, Quinones & Arbona, P.O. Box 19417, San Juan, PR
00910.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ See Letter from Edwin Quinones, Esq., Counsel for Argos Net, Inc., to
Federal Communications Commission (rec. Mar. 12, 2013) (Petition) (on file
in EB-11-SJ-0055 and EB-11-SJ-0062).
^ See Argos Net, Inc., Forfeiture Order, 28 FCC Rcd 1126 (Enf. Bur. 2013)
(Forfeiture Order).
^ 47 U.S.C. S 301.
^ 47 C.F.R. SS 15.1 et seq.
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257, 18257, para. 2 (Enf. Bur. 2000) (citing WWIZ,
Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub.
nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert.
denied, 383 U.S. 967 (1966)); see also Ely Radio, LLC, Memorandum Opinion
and Order, 27 FCC Rcd 7608, 7610, para. 6 (Enf. Bur. 2012) (providing
standard of review for petitions for reconsideration).
^ EZ Sacramento, Inc., 15 FCC Rcd at 18257, para. 2.
^ 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, 17106, para. 43 (1997), recon. denied, 15 FCC Rcd
303 (1999) (Forfeiture Policy Statement) (citing PBJ Communications,
Memorandum Opinion and Order, 7 FCC Rcd 2088, 2089, para 8 (1992)). See
Local Long Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting Corp.,
Forfeiture Order, 14 FCC Rcd 3356 (Compl. & Inf. Bur. 1999), aff'd by
Memorandum Opinion and Order, 15 FCC Rcd 8640 (Enf. Bur. 2000) (forfeiture
not deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ Forfeiture Policy Statement, 12 FCC Rcd at 17106, para. 43 (citing PBJ
Communications, 7 FCC Rcd at 2089, para 8).
^ Petition at 4.
^ First Greenville Corp., Memorandum Opinion and Order and Forfeiture
Order, 11 FCC Rcd 7399 (1996) (First Greenville Corp.).
^ Id.
^ Cf. id., 11 FCC Rcd at 7403, para. 13 (considering that the station's
losses exceeded its income and that the sole shareholder had funded those
losses and received no income from the station when reducing proposed
forfeiture).
^ This forfeiture amount falls within the percentage range that our
precedents have found acceptable. See supra note 9. If Argos still
believes paying this amount presents financial difficulties, we note that
it could always pursue an installment plan to lessen the immediate impact
of the forfeiture. See infra para. 9.
^ Argos Net also argues for a reduced forfeiture based on good faith and
voluntary disclosure of information. Because we are already reducing the
forfeiture based on Argos Net's inability to pay well beyond any reduction
it would receive for its other arguments, we need not address these other
claims.
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
^ 47 U.S.C. S 301.
^ 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 14-137
1
2
Federal Communications Commission DA 14-137