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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Mobile Relay Associates
Licensee of WPPF234
Malibu, California
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File No.: EB-FIELDWR-13-00006950
NAL/Acct. No.: 201532900001
FRN: 0001532027
forfeiture ORDER
Adopted: December 2, 2015 Released: December 3, 2015
By the Regional Director, Western Region, Enforcement Bureau:
INTRODUCTION
* We impose a penalty of $25,000 against Mobile Relay Associates (MRA), licensee of private land mobile radio (PLMR) station WPPF234, Malibu, California, for failing to monitor and take other precautions to avoid causing harmful interference to another licensed station operating on a shared frequency in the Los Angeles area. MRA argues that its actions did not violate any of the Commission's rules (Rules) and that imposition of a penalty would be unduly discriminatory. We find that MRA's actions did result in Rule violations and that it is not the subject of disparate treatment. Therefore, after reviewing MRA's response to the NAL, we find no reason to cancel, withdraw, or reduce the proposed penalty, and we therefore assess the full $25,000 forfeiture the Bureau proposed.
BACKGROUND
* MRA is the licensee of multiple PLMR stations in the Los Angeles area. Frequencies assigned to PLMR stations are available on a shared basis, unless specified otherwise. On March 20, 2013, after investigating complaints of interference against the Station, the Enforcement Bureau's Los Angeles Office issued a Notice of Violation to MRA for violating the Commission's rules (Rules). The Los Angeles Office found that the Station was operating nearly continuously on the shared frequencies 151.7825 MHz and 152.2925 MHz, and therefore failing to restrict its transmissions to the minimum practical transmission time; was not monitoring the transmitting frequencies of other licensees or taking any other reasonable precautions to avoid causing harmful interference; and was not operating its station in accordance with the Rules and the Station's authorization, specifically, failing to operate using trunked technology. In response to the NOV, MRA stated that it was not operating continuously, but that it was simply engaged in "heavy usage" of the shared frequencies. MRA stated that it had programmed the shared channels to allow for a pause of five seconds once every five minutes and that if a transmission begins during that five-second interval the system is programmed to prevent the transmitter from resuming. MRA argued that its "voluntary" efforts were consistent with Section 90.403(e) and that there is no Commission "rule" that requires it to do more. Consequently, MRA's "heavy usage" of the shared frequencies continued.
* On May 8, 2015, Los Angeles agents conducted an inspection of the Station and observed that the Station was operating on shared frequencies 151.7825 MHz and 152.2925 MHz using the non-voice digital communications Digital Dispatch System (DDS). The agents observed that the system transmits a synchronizing signal on the repeater output frequency nearly continuously to keep mobile units registered with the system. The agents also observed the synchronizing signal only occasionally punctuated with data addressed to mobile units. On June 4, 2015, Eden Memorial Park (Eden), licensee of PLMR station WPWA436, Mission Hills, California, reported to the Los Angeles Office that it continued to receive harmful interference on frequency 152.2925 MHz, a frequency it shares with MRA's Station. Subsequently, on June 4, 2015, and June 8, 2015, Los Angeles agents monitored 152.2925 MHz near the Station WPWA436 fixed transmitter site and, using directing finding techniques, located co-channel transmissions to MRA's Station on Saddle Peak in Malibu, California. The agents determined that, on both days, MRA continued to operate its Station in a nearly continuous mode, utilizing a 95% duty cycle, and that its transmissions were seriously degrading Eden's co-channel operations on frequency 152.2925 MHz. This included MRA's near continual transmission of synchronizing signals, generally not containing data, on the shared frequency, even when Eden attempted to utilize the channel.
* On July 6, 2015, the Enforcement Bureau (Bureau) issued the MRA NAL proposing a $25,000 forfeiture against MRA for its apparent willful and repeated violation of Sections 90.403(e) and 90.187(b) of the Rules, for failing to monitor and take other precautions to avoid causing harmful interference to another licensed station operating on a shared frequency in the Los Angeles area.
* On August 13, 2015, MRA filed a response to the NAL. MRA argues that its operations did not result in rule violations, and that imposition of a penalty would be unduly discriminatory to MRA.
DISCUSSION
* The Bureau proposed a forfeiture in this case in accordance with Section 503(b) of the Communications Act of 1934, as amended (Act), Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. When we assess forfeitures, Section 503(b)(2)(E) requires that 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 have fully considered MRA's response to the NAL, which includes two arguments, but we find neither of them persuasive. We therefore affirm the $25,000 forfeiture proposed in the NAL.
MRA's Operations Violated the Commission's Rules
* Section 90.403(e) of the Rules states that "[l]icensees shall take reasonable precautions to avoid causing harmful interference. This includes monitoring the transmitting frequency for communications in progress and such other measures as may be necessary to minimize the potential for causing interference." Section 90.187(b) of the Rules states that "[e]xcept as provided in paragraphs (c) and (d) of this section, trunked systems operating under this section must employ equipment that prevents transmission on a trunked frequency if a signal from another system is present on that frequency. The level of monitoring must be sufficient to avoid harmful interference to other systems." Agents from the Los Angeles Office determined that MRA operated the Station, on June 4 and June 8, 2015, on a nearly continual basis, giving co-channel users the opportunity to operate on the shared frequency of 152.2925 MHz only 5% of any given interval. The agents also determined that MRA's synchronizing signal continued unabated even when the co-channel licensee, Eden, attempted to utilize the channel for voice communications.
* In its NAL Response, MRA does not deny that it operated its Station in the manner described in the NAL. Indeed, MRA acknowledges that the DDS equipment it employed is designed for operation on exclusive channels, and states that the adjustments it made to ensure a "hard stop" at a preset regular interval to enable it to monitor, degraded the equipment's performance. MRA asserts there "is no hard and fast `maximum' channel occupancy for shared channels" and that because other licensees have allegedly engaged in close to 100% channel occupancy on shared channels using DDS equipment, its 95% channel occupancy is therefore patently not a failure to share and not a rule violation. We disagree.
* The Rules require, and the Commission expects, licensees to take necessary measures to minimize the potential for causing interference and to take reasonable precautions to avoid causing harmful interference. For land mobile stations, harmful interference is defined as "any emission, radiation, or induction which specifically degrades, obstructs, or interrupts the service provided by such stations." The Commission has also given examples in the Rules and in published guidance to land mobile licensees of appropriate and reasonable measures to avoid causing interference, including monitoring and employing appropriate equipment. Utilizing equipment that does not detect when another co-channel licensee is attempting to use the shared frequency, but rather only utilizes a preset short duration "hard stop" is not monitoring. If co-channel licensee Eden attempted to operate during any time other than the 5% of the time MRA chose not to transmit, Eden's operation degraded to the point of being unusable. Moreover, utilizing equipment that emits a near continuous synchronizing signal results in emissions that obstruct the provision of services by co-channel licensees. Eden was licensed and authorized to use the shared frequency, however, MRA's actions degraded and obstructed the service provided by Eden, i.e., caused harmful interference, effectively precluding Eden from use of the shared channel.
* The Los Angeles Office investigation found that MRA caused harmful interference to a co-channel licensee on June 4 and June 8, 2015. The evidence establishing that interference included MRA's acknowledged 95% occupancy of the shared channel, that the transmissions preventing Eden from using the shared channel came from MRA's Station, and that MRA only stopped transmitting for other users for three to five seconds at set intervals so that random attempts by co-channel licensee Eden to use the shared channels were blocked unless they happened to fall within MRA's pre-set window. The evidence is unequivocal that MRA's transmissions caused harmful interference to Eden's operations. Thus, we find that MRA willfully and repeatedly violated Sections 90.403(e) and 90.187(b) of the Rules by failing to take reasonable precautions to avoid causing harmful interference, and failing to employ equipment and engage in monitoring that avoids harmful interference to other systems.
MRA's Willful and Repeated Violations Caused Harmful Interference and Require a Monetary Forfeiture
* MRA also argues that even if it did commit a rule violation by failing to adequately share the frequency, imposing a penalty upon MRA would constitute "undue discrimination," because the Commission has failed to enforce "the rule requiring sharing" against anyone that has caused harmful interference to MRA or MRA's customers. We find no merit to this argument. The Commission, in particular, the Enforcement Bureau's Field Offices, have investigated complaints and issued numerous Notices of Apparent Liability for Forfeiture (NALs) and Notices of Violation (NOVs) to radio station operators found to be violating Section 90.403(e) of the Rules.
* MRA further argues that because it is unsatisfied with the results of the Commission's investigations of its complaints against its competitors, it is arbitrary and capricious, in violation of Section 706 of the Administrative Procedure Act, for the Commission to assess a forfeiture against MRA for its violations. MRA cites to case law including Melody Music, Inc. v. FCC (Melody Music), to support this claim and argues that having a "more stringent rule for MRA than for any other licensee in the Los Angeles metropolitan area (or indeed, apparently the entire country) is not permissible." We disagree. As explained above, the Commission's Field Offices have extensively enforced Section 90.403(e) of the Rules against land mobile operators, issuing both NOVs and NALs. The Field Offices have also issued NOVs, and subsequently NALs, in cases when the violator has engaged in egregious conduct, or failed to correct the violation after the issuance of the NOV, or when the violation endangered the public. Given the egregious nature of MRA's violation, including its failure to correct the violation after the issuance of the NOV, in apparent disregard for the Commission's authority, we find that it was not subject to a more stringent rule or process than other violators.
* The Commission has prosecutorial discretion to issue sanctions where appropriate and has broad discretion to consider a variety of factors in determining a forfeiture amount, if warranted, when faced with a violation of its rules. Egregiousness as well as the duration of the violation are two of the factors under Section 1.80 of the Rules that must be considered when determining the degree of a sanction. With respect to MRA's violations, as explained above and in the NAL, MRA received a NOV on March 20, 2013, notifying it that its operation of the Station was violating Section 90.403(e) of the Rules and interfering with a co-channel licensee. Throughout the next two years, MRA continued to operate its station in a manner that continued to cause interference to co-channel licensees. On June 4 and June 8, 2015, Los Angeles agents monitored and observed the harmful interference being caused by MRA to a co-channel licensee. Given the egregiousness of MRA's violations, the forfeiture proposed for its operation of the Station is appropriate.
CONCLUSION
* Having considered MRA's response to the NAL in light of the applicable statutory factors, the Rules, and the Forfeiture Policy Statement, we find that MRA willfully and repeatedly violated Sections 90.403(e) and 90.187(b) of the Rules, by failing to monitor and take other precautions to avoid causing harmful interference to another licensed station operating on a shared frequency in the Los Angeles area. We decline to cancel or reduce the $25,000 forfeiture proposed in the NAL.
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, Mobile Relay Associates IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for willful and repeated violation of Sections 90.403(e) and 90.187(b) of the Commission's rules.
* 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 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 Act.
* 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. Mobile Relay Associates 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 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 should be followed based on the form of payment selected:
* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with completed Form 159) must be mailed to the 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 From 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, SW, Room 1-A625, Washington, DC 20554. Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by telephone, 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 first class mail and certified mail, return receipt requested, to Mobile Relay Associates, P.O. Box 19, Paramount, CA 90723-0019, and to its counsel, David J. Kaufman, Esquire, Rini O'Neil, PC, 1200 New Hampshire Ave. NW, Suite 800, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director
Western Region
Enforcement Bureau