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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Access Media 3, Inc. West Palm Beach, Florida ) ) ) ) ) )
) File No.: EB-FIELDSCR-13-00008217 NAL/Acct. No.: 201432600001 FRN:
0021818968
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 26, 2014 Released: March 26, 2014
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Access Media 3, Inc. (AM3), apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
(Act),^ by operating a Cable Television Relay Service (CARS) Station
in West Palm Beach, Florida, without the requisite Commission
authorization. We conclude that AM3 is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Cable operators utilize CARS stations to distribute programming to
microwave hubs where it may be physically impossible or too expensive
to run cable. In this capacity, CARS stations are either
point-to-point or point-to-multipoint microwave systems.^ CARS
stations are not used to distribute programming directly to
subscribers.^ The operation of a CARS station requires a license from
the Commission pursuant to Section 301 of the Act and Section 78.13 of
the Commission's rules (Rules).^ A CARS license is obtained through
the filing of an application (Form 327) with the Commission.^ The
licenses are issued for a period of five years and can be renewed at
five year intervals thereafter.^
3. Apartment Media Works, LLC was issued a license to operate CARS
Station WLY-833 at the Cresthaven Ashley Master Association
(Cresthaven) complex in West Palm Beach, Florida. That license,
however, expired on December 1, 2009.^ AM3 acquired the facilities of
the expired CARS station for Cresthaven in December 2012.^ On December
6, 2012, the Media Bureau's Engineering Division provided AM3 detailed
instructions on how to request Special Temporary Authority (STA)^ and
submit the Form 327 for a new CARS authorization.^
4. On April 23, 2013, agents from the Enforcement Bureau's Miami Office
(Miami Office) determined that transmissions in the approximate
frequency range 17.75 to 17.98 GHz were emanating from the expired
WLY-833 location. Later that day, agents from the Miami Office,
accompanied by the AM3 Field Operations Manager, inspected the expired
CARS Station WLY-833. The Field Operations Manager confirmed AM3 was
transmitting from the WLY-833 location, but could not produce any
Commission authorization to operate a CARS station.
5. On August 27, 2013, agents from the Miami Office observed, and the AM3
Field Operations Manager confirmed, that expired Station WLY-833 was
not transmitting or in use. The Cresthaven property manager stated
that its cable service failed approximately 1 week prior to this date.
Therefore, AM3 had operated the expired CARS Station WLY-833 without
authorization from the Commission from at least April 23, 2013 until
approximately August 19, 2013. An AM3 supervisor later confirmed that
the CARS equipment had been repaired and the service had resumed
between August 27 and November 2013.
6. Although it submitted an incomplete Form 327 on April 24, 2013,^ as of
March 25, 2014, the Commission has no record of a complete Form 327 or
an STA being filed by AM3.
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. Unlicensed Operation of a CARS Station
8. The evidence in this case is sufficient to establish that AM3 violated
Section 301 of the Act. 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 within the United States, except
under and in accordance with the Act and with a license granted under
the provisions of the Act.^ The CARS service is subject to licensing
and technical regulations set forth in Part 78 of the Rules.^ When AM3
acquired the facilities associated with expired CARS Station WLY-833,
the license had already expired. After acquiring the facilities, AM3
was informed by the Media Bureau's Engineering Division that it must
apply for a CARS license and an STA to continue operations.
Nevertheless, on April 23, 2013, agents from the Miami Office observed
AM3 operating expired Station WLY-833 without Commission
authorization. AM3 continued to operate expired Station WLY-833
without Commission authorization until approximately August 19, 2013,
and resumed operations without Commission authorization sometime
between August 27 and November 2013. As of March 25, 2014, AM3 has not
yet submitted the required complete Form 327 or requested an STA.
Based on the evidence before us, we find that AM3 apparently
willfully and repeatedly violated Section 301 of the Act by operating
a CARS station without the required Commission authorization.
B. Proposed Forfeiture
9. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000.^ 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.^ Applying the Forfeiture Policy Statement, Section 1.80
of the Rules, and the statutory factors to the instant case, we
conclude that AM3 is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
Access Media 3, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 301 of the Act.^
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture, Access Media 3, Inc. 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. AM3 shall also send electronic notification
on the date said payment is made to [1]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 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.
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, Miami Office, P.O. Box 520617, Miami, FL 33152-0617,
and include the NAL/Acct. No. referenced in the caption. Access Media
3, Inc. also shall e-mail the written response to
[2]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 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.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Access Media 3, Inc. at 900
Commerce Drive, Suite 200, Oak Brook, IL 60523.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 301.
^ See Federal Communications Commission, Cable Television Relay Service
(CARS), available at http://www.fcc.gov/
encyclopedia/cable-television-relay-service-cars (last visited Feb. 26,
2014).
^ See id.
^ 47 C.F.R. S 78.13.
^ 47 C.F.R. S 78.15.
^ 47 C.F.R. S 78.29.
^ See License WLY-833 (on file in EB-FIELDSCR-13-00008217).
^ See Letter from Patrick Cunningham, MDU Communications (USA) Inc., to
Cresthaven Ashley Master Association (Nov. 5, 2012) (on file in
EB-FIELDSCR-13-00008217).
^ See 47 C.F.R. S 78.33.
^ See E-mail from Gloria Conway, Media Bureau, to Jeff Newton, Director of
Network Operations, Access Media 3, Inc. (Dec. 6, 2012, 6:03 P.M.) (on
file in EB-FIELDSCR-13-00008217) (December 6 Email). See also 47 C.F.R. S
78.15. Those instructions were reiterated in several additional emails.
See, e.g., E-mails from Stephanie Dabkowski, Resident Agent, Miami
Office, to Lynda Miller, Manager of Carrier Relations, Access Media 3,
Inc. (Apr. 24, 2013, 11:01 A.M.; Sept. 9, 2013, 1:21 P.M.); E-mails from
Gloria Conway, Media Bureau, to Lynda Miller, Access Media 3, Inc. (June
13, 2013, 2:52 P.M.; Sept. 9, 2013, 2:25 P.M.); E-mail from Stephanie
Dabkowski, Resident Agent, Miami Office, to Lynda Miller, and Jeff Newton,
Access Media 3, Inc. (Jan. 6, 2014, 8:37 A.M.) (all e-mails on file in
EB-FIELDSCR-13-00008217).
^ See E-mail from Lynda Miller, Access Media 3, Inc. to Stephanie
Dabkowski, Resident Agent, Miami Office (Apr. 24, 2013, 10:55 A.M.) (on
file in EB-FIELDSCR-13-00008217). AM3 e-mailed the incomplete Form 327 to
the Miami Office. An agent responded that AM3 needed to follow the
detailed filing instructions from the December 6 Email. See E-mail from
Stephanie Dabkowski, Resident Agent, Miami Office, to Lynda Miller, Jeff
Newton, and Phil Lynch, Access Media 3, Inc. (Apr. 24, 2013, 2:09 P.M.)
(on file in EB-FIELDSCR-13-00008217).
^ 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, para. 5 (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, para. 9.
^ 47 U.S.C. S 301.
^ See 47 C.F.R. SS 78.1 et. seq.
^ 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. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 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.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 14-385
2
Federal Communications Commission DA 14-385
References
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