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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Midessa Television Limited Partnership
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File No.: EB-SED-14-00016720
NAL/Acct. No.: 201432100028
FRN: 0001663863
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 14, 2014 Released: October 14, 2014
By the Commission:
INTRODUCTION
We propose a penalty of $86,400 against Midessa Television Limited Partnership (Midessa) for apparently operating three broadcast auxiliary services (BAS) stations without authorizations and operating an additional six BAS stations at variance with their respective authorizations, all in conjunction with its full power and low power television stations. We take this action as part of our duty to prevent unlicensed radio operations from potentially interfering with authorized radio communications in the United States, including emergency communications between first responders, such as public safety, law enforcement, emergency medical, and emergency personnel, and to ensure the efficient administration and management of wireless radio frequencies. Midessa's apparent violations continued for a number of years, including for a substantial time after it became aware of its unauthorized operations, thus warranting a significantly increased penalty.
As discussed below, Midessa apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended (Act), and Sections 1.903(a) and 1.947(a) of the Commission's rules (Rules).
BACKGROUND
On April 23, 2013, Midessa submitted applications for three new "as built" stations (WQRY297, WQRY299, and WQRY300) and six modified stations (KWT86, KWT87, KWU20, WLE595, WLE613, and WLG239). The modifications primarily involved updates to the licensed locations of several of Midessa's transmit/receive sites to reflect the as-built locations, changes to the authorized frequencies, and recharacterization of sites from analog to digital. In the applications, Midessa disclosed that it had operated three BAS stations without an authorization and six BAS stations at variance from its authorization.
Because it appeared that Midessa operated its BAS facilities in violation of the Rules, the FCC's Wireless Telecommunications Bureau referred this matter to the Enforcement Bureau (Bureau) for investigation and possible enforcement action. On November 7, 2013, the Bureau's Spectrum Enforcement Division directed the company to submit a sworn written response to a series of questions relating to Midessa's apparent unauthorized operations.
Midessa responded on January 31, 2014, and admitted that it operated three BAS facilities without authorization and failed to operate six BAS facilities in accordance with their respective authorizations. Midessa noted that it learned of the violations in May 2012 in the course of conducting an audit of its BAS facilities. Midessa stated that, even after interviewing former station staff, it could not identify the exact dates the violations occurred, but that they probably were ongoing at various times for at least four years. Further, Midessa stated that it could not rule out the possibility that some of the stations were noncompliant at the times of their acquisitions in 1991 and 2001.
DISCUSSION
Operation of Unauthorized BAS Licenses
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. Section 301 of the Act requires that "[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio ... except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act." Section 1.947(a) of the Rules states that all "major modifications" to BAS licenses require prior Commission approval. Section 1.929(d)(1) of the Rules specifies that the types of modifications that occurred here -- changes to television BAS coordinates, frequency, bandwidth, antenna height, and emission type -- are considered major modifications.
As a Commission licensee, Midessa was required to maintain and operate its BAS facilities as authorized in order to continue to operate. Midessa admitted that it operated three BAS facilities without an authorization and that it operated six other BAS facilities at variance with their authorizations. In addition, although Midessa is not clear as to the precise duration of the violations, it admitted that it continued to operate the BAS facilities without Commission authority from May 2012, when it claimed to have first learned of the violations, until April 23, 2013, when it submitted its applications. Moreover, Midessa conceded that some of the stations may have been operated in violation of the Rules for at least four, but possibly as many as twenty-two years. By operating three stations (WQRY297, WQRY299, and WQRY300) without an authorization, Midessa apparently violated Section 301 of the Act and Section 1.903(a) of the Rules; and by operating six other stations (KWT86, KWT87, KWU20, WLE595, WLE613, and WLG239) at variance with their respective authorizations, Midessa apparently violated Section 301 of the Act and Section 1.947(a) of the Rules.
Proposed Forfeiture
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 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. Based on the record before us, Midessa's apparent violations of Section 301 of the Act and Sections 1.903(a) and 1.947(a) of the Rules are both willful and repeated.
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(b) of the Rules sets a base forfeiture of $10,000 for operation of a station without Commission authority and a base forfeiture of $4,000 for unauthorized emissions, using an unauthorized frequency, and construction or operation at an unauthorized location. Given the apparent violations at issue here, the base forfeiture is $54,000 ($30,000 for the three BAS stations operated without authorization plus $24,000 for the six BAS stations that were not operating as authorized).
Midessa asserts that a $4,000 base forfeiture should apply to the three violations for operating BAS stations without authorizations. Midessa argues that its situation is akin to cases involving BAS studio transmitter links in which the Commission assessed a $4,000, as opposed to a $10,000, penalty after determining that the licensee had color of authority to operate the BAS studio transmitter links pursuant to its existing license for its full-power station. We disagree. Our review of Commission precedent shows that the Bureau's most recent enforcement actions have consistently applied a $10,000 base forfeiture for unlicensed BAS operations, even when the licensee had a valid license for its associated full-power station.
Given the totality of the circumstances, and consistent with the Forfeiture Policy Statement, we also conclude that an upward adjustment of $32,400 is warranted for the extended duration of the violations. In this regard, we are particularly mindful that Midessa's unlicensed and unauthorized operation continued for at least four years, including a substantial period after becoming aware of the violations. In applying the applicable statutory factors, we also consider whether there is any basis for a downward adjustment of the proposed forfeiture. Here, we do not find a basis for a downward adjustment of the proposed penalty. Consistent with Section 301 of the Act, licensees who find themselves out of compliance with the licensing requirements should immediately cease unauthorized operation and seek operating authority and/or modify their authorizations before continuing to operate. Even though Midessa disclosed the violations prior to our investigation, Midessa acknowledged in its LOI Response that it became aware of the violations in May 2012, approximately one year prior to its disclosure in its license applications and modifications, yet continued its unauthorized operation of the nine BAS stations in violation of the Act and the Rules. Consistent with precedent, we decline to downwardly adjust the proposed forfeiture in light of Midessa's delayed disclosure of the violations and its lengthy unauthorized operation.
Therefore, after applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors, and in view of the particular facts and circumstances of this case, we conclude that Midessa is apparently liable for a total forfeiture of $86,400 for its unauthorized operation of three BAS stations and its failure to operate six additional BAS licenses in accordance with its authorization.
ORDERING CLAUSES
Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and 1.80 of the Commission's rules, Midessa Television Limited Partnership is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of eighty-six thousand four hundred dollars ($86,400) for willful and repeated violation of Section 301 of the Communications Act of 1934, as amended, and Sections 1.903(a) and 1.947(a) of the Commission's rules.
IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's rules, within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture, Midessa Television Limited Partnership 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 17 below.
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. Midessa Television Limited Partnership shall send electronic notification of payment to Ricardo Durham at Ricardo.Durham@fcc.gov, Josh Zeldis at Josh.Zeldis@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 that Midessa Television Limited Partnership 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, D.C. 20554. If Midessa Television Limited Partnership has 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 Commission's 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 e-mailed to Ricardo Durham at Ricardo.Durham@fcc.gov and to Josh Zeldis at Josh.Zeldis@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.
IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Robert H. Drewry, Vice President, Midessa Television Limited Partnership, 500 Montgomery Square, Suite 305, Lawton, Oklahoma 73501 and to David D. Oxenford, Esq., Counsel for Midessa Television Limited Partnership, Wilkinson Barker Knauer, LLP, 2300 N Street, N.W., Suite 700, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary