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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Emigrant Storage LLC
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File No.: EB-SED-13-00008885
NAL/Acct. No.: 201232100034
FRN: 0021058938
FORFEITURE ORDER
Adopted: April 1, 2014 Released: April 1, 2014
By the Acting Chief, Enforcement Bureau:
INTRODUCTION
We impose a penalty of $20,000 against Emigrant Storage LLC (Emigrant), former licensee of Private Land Mobile Radio Service (PLMRS) station WPKM212, Reno, Nevada, for operating the station without authority for more than nine years and for failing to file a timely application to renew the station's license. We take this action as part of our duty to prevent unlicensed radio operations from dangerously interfering with authorized radio communications (potentially including emergency communications between first responders, such as public safety, law enforcement, emergency medical, and emergency response personnel) in the United States. In this case, by continuing to operate the station even after the station's license had expired, Emigrant actually caused interference to an authorized user of the spectrum. Emigrant does not deny the violations, but nonetheless urges that the proposed $20,000 forfeiture should be cancelled or reduced. We decline to do so.
* II. BACKGROUND
On July 31, 2012, the Enforcement Bureau (Bureau) released a Notice of Apparent Liability for Forfeiture proposing a $20,000 forfeiture against Emigrant for its apparent willful and repeated violations of Section 301 of the Act and of Sections 1.903(a) and 1.949(a) of the Rules by operating station WPKM212 without Commission authority for more than nine years and for failing to seek timely renewal of the station's license.
On August 27, 2012, Emigrant responded to the NAL and sought to reduce or cancel the proposed forfeiture. In its NAL Response, Emigrant does not dispute that it operated station WPKM212 without Commission authority for over nine years or that it failed to seek timely renewal of the station's license. Emigrant argues, however, that its violations were minor because the unauthorized operation did not involve "a large manufacturing facility over a wide area with numerous devices," and that the company acted immediately and in good faith to remedy the violations when brought to its attention. Emigrant also contends that a $20,000 forfeiture is "excessive" in light of the financial impact it would have on Emigrant and its owners, and when compared to the $25,000 forfeiture assessed in BASF.
* III. DISCUSSION
The Bureau assessed the proposed forfeiture in accordance with Section 503(b) of the Act, Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. In examining Emigrant's NAL Response, we "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." As discussed below, we reject Emigrant's arguments for reduction or cancellation of the proposed forfeiture; we affirm our conclusion in the NAL that Emigrant willfully and repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules by operating station WPKM212 without Commission authority for more than nine years and also violated Section 1.949(a) of the Rules by failing to file a timely license renewal application for the station.
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 authorization. Additionally, under Section 1.949(a) of the Rules, a licensee must file an application for renewal of any station license it intends to continue to operate "no later than the expiration date of the authorization for which renewal is sought and no sooner than 90 days prior to expiration." Absent a timely filed renewal application, a wireless license automatically terminates on the license expiration date.
As previously noted, Emigrant does not dispute that it operated station WPKM212 without Commission authority or that it failed to timely file for continued operating authority. Emigrant argues, however, that the proposed forfeiture should be cancelled or reduced because the violations were minor in light of the size of its operations and because it acted in good faith to resolve the violations when brought to its attention. We disagree. Under Section 301 of the Act and Section 1.903(a) of the Rules, Emigrant was required to obtain Commission authorization to operate its station irrespective of operation size, purpose, or number of devices in use. Indeed, this threshold requirement furthers the Commission's goal of "protect[ing] the public and licensees providing service to the public from interference caused by other authorized or unauthorized users of spectrum." As the record reflects, Emigrant's unauthorized operation compromised this goal by causing harmful interference to another wireless operator. In addition, Emigrant's unauthorized operation continued for over nine years -- almost twice as long as the station's initial license term. Taken together, these facts do not constitute a minor violation. Moreover, while Emigrant took prompt action to come into compliance with the Rules before the Commission initiated the present investigation (and which the Bureau acknowledged when it reduced the proposed forfeiture in the NAL), the significant duration of the unauthorized operation and other facts and circumstances of this case do not justify cancelling or further reducing the proposed forfeiture.
In addition, Emigrant argues that the $20,000 forfeiture is "excessive" in light of the financial impact it would have on Emigrant and its owners, and also when compared to the $25,000 forfeiture assessed in BASF, which involved a "multi-national corporation and operation of a station at a large facility." As a threshold matter, the financial records Emigrant provided with its NAL Response do not support a downward adjustment or cancellation for inability to pay. Although Emigrant did not expressly state that it could not pay the forfeiture, it provided financial records to argue that the forfeiture was "excessive" and a "significant punitive penalty" when compared to Emigrant's gross revenues and overall size. In general, an entity's "gross revenues are the best indicator of its ability to pay a forfeiture." Having examined the financial records provided by Emigrant, we find that a $20,000 forfeiture expressed as a percentage of Emigrant's gross revenues is payable, and as such, decline to cancel or reduce the forfeiture on this basis.
Moreover, we are unpersuaded by Emigrant's argument that the forfeiture is excessive when compared to the forfeiture assessed in BASF. Specifically, Emigrant argues that BASF "was a virtually identical factual situation; however, it involved a multimillion dollar multi-national corporation and operation of a station at a large facility," but resulted in a forfeiture that was only $5,000 more than the forfeiture proposed here. In making that comparison, Emigrant fails to note the significant difference in the length of the unauthorized operation. In assessing the $25,000 forfeiture in BASF, the Bureau stressed the five years of unauthorized operation as well as the company's status as a profitable enterprise. In the instant case, the Bureau carefully considered the nine-year duration of Emigrant's misconduct (nearly twice the length of the initial license term) in the NAL when proposing a forfeiture amount. Thus, we also decline to cancel or reduce the forfeiture on this basis.
In sum, after full consideration of Emigrant's NAL Response, the record before us, and the applicable statutory factors, we affirm our conclusion in the NAL that Emigrant willfully and repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules by operating station WPKM212 without authorization and also violated Section 1.949(a) of the Rules by failing to file a timely license renewal application for the station. Further, because Emigrant failed to provide a sufficient basis for cancellation or reduction of the forfeiture, we also affirm the proposed $20,000 forfeiture.
IV. ORDERING CLAUSES
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, Emigrant Storage LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty thousand dollars ($20,000) for willful and repeated violations of Section 301 of the Communications Act of 1934, as amended, and Sections 1.903(a) and 1.949(a) of the Commission's rules.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's 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 Communications Act of 1934, as amended. Emigrant Storage LLC shall send electronic notification of payment to Jason Koslofsky at Jason.Koslofsky@fcc.gov, Daudeline Meme at Daudeline.Meme@fcc.gov, and Samantha Peoples at Sam.Peoples@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 Emigrant Storage LLC should follow based on the form of payment it selects:
* 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.
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, DC 20554. If Emigrant Storage, LLC has questions regarding payment procedures, it should contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by Certified Mail, Return Receipt Requested, to William A. Manke, Sr. and Lavon T. Manke, Owners, Emigrant Storage LLC, 2500 Longley Lane, Reno, NV 89502; and to James M. Walsh, Walsh, Baker & Rosevear, P.C., counsel to Emigrant Storage LLC, 9468 Double R Boulevard, Suite A, Reno, NV 89521.
* FEDERAL COMMUNICATIONS COMMISSION
Travis LeBlanc
Acting Chief
Enforcement Bureau