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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Life on the Way Communications, Inc.
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File No.: EB-SED-12-00000906
NAL/Acct. No.: 201332100005
FRN: 0009016239
FORFEITURE ORDER
Adopted: March 20, 2015 Released: March 23, 2015
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
* INTRODUCTION
We impose a penalty of $18,000 against Life on the Way Communications, Inc. (Life on the Way), licensee of domestic fixed satellite service earth station E970117, Van Nuys, California, for operating the station without Commission authority for more than eight years. We also affirm our admonishment against Life on the Way for engaging in the unauthorized assignment of the license of station E970117. We take this action as part of our duty to ensure that persons do not transmit radio signals within the U.S. territorial boundaries without Commission authority. By operating the station without Commission authority, Life on the Way risked causing interference to authorized users of the spectrum and by not receiving prior approval to assign its license risked operation by potentially unqualified parties or in a manner that might otherwise be inconsistent with the public interest. Life on the Way does not deny the violations, but requests that we cancel both the proposed forfeiture and the admonishment because, among other things, it claims we failed to act within the one-year statute of limitations and failed to credit that any violation was not intentional. As discussed further below, our action occurred within the statute of limitations and our finding that there was a violation of our rules does not depend on whether there was any intent to do so. Thus, after reviewing Life on the Way's response to the NAL, we find no reason to cancel, withdraw, or reduce the proposed penalty, and we therefore assess the full $18,000 forfeiture and admonishment previously proposed by the Bureau.
BACKGROUND
Life on the Way acquired and operated earth station E970117 for several years without seeking or obtaining proper authority, before securing Special Temporary Authority on February 22, 2012. On February 21, 2013, the Division issued the Notice of Apparent Liability for Forfeiture and Admonishment proposing an $18,000 forfeiture against Life on the Way for its apparent willful and repeated violation of Section 301 of the Communications Act of 1934, as amended (Act), and Section 25.102(a) of the Commission's Rules (Rules) by operating earth station E970117 without Commission authority for more than eight years. The Division also admonished Life on the Way for its willful violation of Section 310(d) of the Act and Section 25.119 of the Rules in connection with assignment of the license for earth station E970117 without prior Commission consent.
On March 22, 2013, Life on the Way filed a response to the NAL and requested cancellation of the proposed forfeiture and admonishment. In its NAL Response, Life on the Way argues that the proposed forfeiture was improperly imposed for conduct occurring more than one year from the date of the NAL in violation of Section 503(b)(6) of the Act. Life on the Way also contends that its operation of earth station E970117 without Commission authority was not willful. Life on the Way repeats assertions previously presented in response to the Division's inquiries, and argues that the NAL does not take into account Life on the Way's mistaken belief that the license for earth station E970117 had been assigned to it and it was authorized to operate the earth station. Finally, Life on the Way notes that on September 28, 2012, the Commission released a Notice of Proposed Rulemaking initiating a review of its Part 25 rules governing the licensing and operation of space stations and earth stations and therefore argues that it should not be held responsible for its errors in the case.
DISCUSSION
The Division assessed the proposed forfeiture amount in accordance with Section 503(b) of the Act, Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. In examining Life on the Way'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 are not persuaded by Life on the Way's arguments for cancellation of the proposed forfeiture amount and admonishment. We therefore conclude that Life on the Way is liable for a forfeiture in the amount of $18,000 for willfully violating Section 301 of the Act and Section 25.102(a) of the Rules and an admonishment is appropriate for willfully violating Section 310(d) of the Act and Section 25.119 of the Rules.
Unauthorized Operation of Earth Station License
Section 301 of the Act and Section 25.102(a) of the Rules prohibit the use or operation of any apparatus for the transmission of energy or communications or signals by an earth station except under and in accordance with a Commission granted authorization.
We issued the NAL within the Statute of Limitations Period
In its NAL Response, Life on the Way argues the actual release date of the NAL was February 22, 2013, since the NAL was sent to Life on the Way by facsimile on February 21, 2013 after 6:00 p.m. which it believes to be after the "close of business," and it was included in the Daily Digest of February 22, 2013. As a matter of law, however, the date of issuance of a notice of apparent liability is the date of its public notice, which in this case was the date the Commission released the document. The Commission released the NAL on February 21, 2013 by making the full text of the document available to the public at Commission headquarters on that date.
We properly considered the extended period of misconduct
Life on the Way also argues that by referring to the eight years of unauthorized operation, the NAL improperly imposed a forfeiture for conduct occurring more than one year from the date of the NAL, in violation of Section 503(b)(6) of the Act.
We reject Life on the Way's argument because again it is based on mistaken contention that the Bureau failed to act within the statute of limitations. While the Commission may not find Life on the Way liable for violations committed prior to February 21, 2012, it may lawfully look at facts that occurred more than one year prior to the issuance of the NAL in order to establish the violator's degree of culpability and the continuing nature of the violations. Therefore, since the NAL was issued within one year of Life on the Way's violation of Section 301 of the Act and Section 25.102(a) of the Rules, we may consider the fact that that Life on the Way's misconduct occurred over an extended period. Moreover, the cases cited by Life on the Way are distinguishable from the instant case because the proposed forfeitures in those cases were canceled since they were issued for violations occurring outside of the statute of limitations, whereas the NAL in this case was issued within the statute of limitations period.
The possible absence of intent to violate the Rules is not relevant to whether they were violated
Life on the Way also requests cancellation of the forfeiture asserting that it did not willfully violate the Act and the Rules. In this regard, Life on the Way contends that it did not consciously or deliberately operate earth station E970117 without Commission authorization, explaining that it believed it had sought and received Commission approval for the assignment of the license and that it was authorized to operate the station. Licensees, however, are expected to know and comply with the Rules. As the Commission has repeatedly held, violations resulting from inadvertent error or failure to become familiar with the FCC's requirements can be and often are willful violations. In the context of a forfeiture action, "willful" does not require a finding that the rule violation was intentional. Rather, the term "willful" means that the violator knew it was taking (or not taking) the action in question, irrespective of any intent to violate the law. Here, Life on the Way knew it was operating the earth station - that is all the intent that was required.
Any failure by the Commission to send a renewal reminder is irrelevant
Life on the Way also states that the Notices of Apparent Liability for Forfeiture cited in the NAL are inapposite, because in each cited case, the party subject to the forfeiture received a renewal reminder, but failed to timely file a renewal application. Life on the Way contends that in this case, no renewal reminder was received. Notwithstanding Life on the Way's assertions, the International Bureau is not obligated to provide licensees with reminders of their license renewal obligations. In any event, because Life on the Way failed to obtain prior Commission consent to the assignment of license for station E970117, the Commission would not have had a record of Life on the Way as the licensee.
The issuance of the Part 25 NPRM does not excuse Life on the Way's violation of the Rules
Life on the Way also points to the Commission's release of a Notice of Proposed Rulemaking initiating a review of its Part 25 rules governing the licensing and operation of space stations and earth stations as evidence that it should not be held responsible for its violation of the Rules. We disagree with Life on the Way's characterization of the Notice of Proposed Rulemaking as providing a basis for excusing its violations of the Rules. The Notice of Proposed Rulemaking did not propose to change the fundamental obligation of an earth station operator to secure a license before using it to transmit radiofrequencies.
Unauthorized Assignment of Earth Station License
Section 310(d) of the Act states that "[n]o construction permit or station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby." Section 25.119 of the Rules requires that licensees of Part 25 satellite space and earth station authorizations file an application and receive prior approval for Commission authorization to transfer, assign, or dispose of (voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation of any other entity) a station license or accompanying rights. Specifically, pursuant to Section 25.119(c) of the Rules, licensees seeking to assign an earth station license must obtain the prior approval of the Commission by submitting an FCC Form 312, Main Form and Schedule A.
Life on the Way seeks cancellation of the admonishment for engaging in the unauthorized assignment of the license for station E970117 in willful violation of Section 310(d) of the Act and Section 25.119 of the Rules. Pursuant to Section 25.119(c) of the Rules, an application on FCC Form 312, Main Form and Schedule A, was required to be filed with the International Bureau in order to obtain Commission consent to the assignment of the E970117 license to Life on the Way. No such application was filed and Life on the Way's assertion that the Media Bureau's approval of the KTLW Assignment Application also had the effect of granting its consent to the assignment of the license of earth station E970117 to Life on the Way was properly rejected in the NAL.
Life on the Way repeats assertions previously presented in response to the Division's inquiries, and argues that the admonishment included in the NAL does not take into account its mistaken belief that the license for earth station E970117 had been assigned to it as an auxiliary station, and it was authorized to operate the earth station. In addition, Life on the Way contends that it should have been notified by the Commission and the Media Bureau that approval of its KTLW Assignment Application did not grant consent to the assignment of the license of earth station E970117 to Life on the Way. We find that Life on the Way's argument is without merit as Section 25.119(c) of the Rules clearly states that licensees seeking to assign an earth station license must obtain the prior approval of the Commission by submitting an FCC Form 312, Main Form and Schedule A. We find that Life on the Way's apparent unfamiliarity with the Commission's procedures for obtaining the approval for the assignment of an earth station license does not warrant favorable consideration. This is especially true since earth stations have never been classified by the Commission as auxiliary stations. Moreover, we find unavailing Life on the Way's contention that the Commission should have somehow notified it that a component of a transaction that was not before the agency did not in fact cover a station license for which no assignment application was actually filed. We therefore decline to cancel the admonishment for Life on the Way's unauthorized assignment of the license for station E970117.
Having considered Life on the Way's response to the NAL in light of the applicable statutory factors, the Rules, and the Forfeiture Policy Statement, we find that Life on the Way willfully violated Section 301 of the Act and Section 25.102(a) of the Rules by operating station E970117 without authorization and willfully violated Section 310(d) of the Act and Section 25.119 of the Rules in connection with the assignment of the license for earth station E970117 without prior Commission consent. Accordingly, we decline to cancel the forfeiture and admonishment and find Life on the Way liable for a forfeiture in the amount of $18,000.
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, Life on the Way Communications, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of eighteen thousand dollars ($18,000) for willful violation of Section 301 of the Communications Act of 1934, as amended and Section 25.102(a) of the Commission's rules.
IT IS FURTHER ORDERED that Life on the Way Communications, Inc.'s petition for reconsideration of the Admonishment IS DENIED and the Admonishment for violation of Section 310(d) of the Communications Act of 1934, as amended, and 25.119 of the Commission's rules IS AFFIRMED.
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 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 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. Life on the Way Communications, Inc. shall send electronic notification of payment to Kathy Harvey at Kathy.Harvey@fcc.gov, JoAnn Lucanik at JoAnn.Lucanik@fcc.gov, and to 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 should be followed 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 full payment 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. 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 Gary Curtis, Vice President, Life on the Way Communications, Inc., 14820 Sherman Way, Van Nuys, CA 91405-2233, and to Jeffrey D. Southmayd, Esq., Counsel for Life on the Way Communications, Inc., Southmayd & Miller, 4 Ocean Ridge Boulevard South, Palm Coast, FL 32137.
FEDERAL COMMUNICATIONS COMMISSION
Bruce D. Jacobs
Chief
Spectrum Enforcement Division
Enforcement Bureau