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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Acumen Communications
Licensee of Station WQHT586,
Los Angeles, CA
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File No.: EB-FIELDWR-13-00009105
NAL/Acct. No.: 201432900004
FRN: 0016049017
* NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 8, 2014 Released: April 9, 2014
By the District Director, Los Angeles Office, Western Region, Enforcement Bureau:
INTRODUCTION
* We propose a penalty of $10,000 against Acumen Communications (Acumen) for apparently operating its land mobile stations on two unauthorized frequencies. Unauthorized operations undermine the Commission's radio licensing system and potentially cause interference to licensed communications, including public safety channels. Acumen acknowledged its unauthorized operation to FCC agents and, given Acumen's history as a repeat offender, this violation warrants stringent enforcement action.
* In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that Acumen, licensee of Station WQHT586 in Los Angeles, California, apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended (Act), and Section 1.903(a) of the Commission's rules (Rules), by operating Station WQHT586 on a frequency pair not authorized by its license. 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.
BACKGROUND
* In response to a complaint of unauthorized operations on VHF frequency 152.405 MHz, agents from the Enforcement Bureau's Los Angeles Office (Los Angeles Office) monitored transmissions on frequency 152.405 MHz on May 7, 2013, that self-identified as Station WQHT586. Review of the FCC's licensing database revealed that frequency 152.405 MHz was not authorized for use by Station WQHT586. The Los Angeles Office agents utilized direction finding techniques on May 10, May 14, and June 5, 2013, to locate land mobile stations operating on frequencies 152.405 MHz and 157.665 MHz under call sign WQHT586 at a truck dispatch service center on Melrose Avenue in Los Angeles (Melrose Avenue Location) and communicating with a repeater station operating under call sign WQHT586 on Cyprean Drive in Hollywood (Cyprean Drive Location) on frequency 152.405 MHz. Inspections of the radio stations at the Melrose Avenue Location were conducted on May 10, 2013, and at the Cyprean Drive Location on May 21, 2013 and June 5, 2013. The agents' investigation found that the mobile and base station radios at the Melrose Avenue Location had been programmed by Acumen personnel to communicate with the Acumen repeater at the Cyprean Drive Location using the frequency pair 152.405 MHz/157.665 MHz, even though Acumen's license for WQHT586 did not authorize use of either frequency.
* On July 18, 2013, the Los Angeles Office issued Acumen a Notice of Violation (NOV) for violating Section 1.903(a) of the rules by failing to operate Station WQHT586 in accordance with its authorization when it operated without authorization on frequencies 152.405 MHz and 157.665 MHz. In its NOV Response, Acumen acknowledged that "the frequency was used in error on this repeater station and a new application has been filed with the F.C.C, for use on this frequency for this repeater station." On September 27, 2013, Acumen filed an application seeking to add frequencies 152.405 MHz and 157.665 MHz to the Station WQHT586 authorization. The application remains pending.
DISCUSSION
* 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.
Operation on Unauthorized Frequency
* 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, such as Acumen's station, 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 four separate days in May 2013, Los Angeles Office agents observed that Station WQHT586 was operating radio equipment that was transmitting on frequencies not authorized by its license, and on June 5, 2013, Acumen personnel admitted to agents that it had no authority to operate Station WQHT586 on the frequency pair 152.405 MHz and 157.665 MHz. Acumen also acknowledged operating on the unauthorized frequencies in its response to the NOV. 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 WQHT586 on frequencies not authorized by its license.
Proposed Forfeiture and Reporting Requirement
* 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 is $4,000. Because Acumen was operating without authority on a frequency pair, we propose twice the base forfeiture, or $8,000. 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. After consideration of these factors, we find that a $2,000 upward adjustment in the base forfeiture amount is warranted because a prior investigation by the Los Angeles Office determined that Acumen was operating on an unauthorized frequency at another of its licensed stations. 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 ten thousand dollars ($10,000).
* 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 WQHT586 in compliance with Section 301 of the Act, and with Section 1.903(a) 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 11, below, within thirty (30) calendar days of the release date of this NAL.
ORDERING CLAUSES
* 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, Acumen Communications is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for violation of Section 301 of the Act and Section 1.903(a) of the Rules.
* 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 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.
* IT IS FURTHER ORDERED that Acumen Communications SHALL SUBMIT a written statement, as described in paragraph 8, 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 Communication Commission, Enforcement Bureau, Western Region, Los Angeles District Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA 90703. Acumen Communication shall also e-mail the written statement to WR-Response@fcc.gov.
* 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 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.
* 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.
* 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.
* 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.
* 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