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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
* NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 6, 2015 Released: July 7, 2015
By the District Director, Los Angeles Office, Western Region, Enforcement Bureau:
INTRODUCTION
* We propose 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. The Commission notified MRA that its operations were in violation of the Commission's sharing and monitoring requirements for PLMR stations, however, MRA failed to modify its operations of the station to remedy the interference it was causing. MRA continued to operate the station, causing harmful interference warranting a significant monetary penalty.
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. Station WPPF234 (Station) is authorized to operate on six frequencies from a fixed location on Saddle Peak in Malibu, California. MRA is required to share two of the Station's assigned frequencies, 151.7825 MHz and 152.2925 MHz, with other co-channel licensees. The Station is also required to operate as a trunked Industrial/Business Pool station. Monitoring requirements apply to all trunked operations on shared channels. The level of monitoring must be sufficient to avoid causing harmful interference to other systems.
* 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.
* MRA responded to the NOV stating that the Station 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. MRA contended that if the Commission wanted to create a "more precise rule" that "requires a licensee on a shared channel to force a pause in transmission at any particular interval" it is free to do so but must do so prospectively through a rulemaking complying with the Administrative Procedures Act. MRA also stated that, in order to avoid causing interference it has reduced its power and that it is in compliance with the monitoring requirement as specified by the frequency coordinators. Further, MRA asserted that the station "is employing a form of trunking" and that even if its operation was deemed "conventional" it would not be a rule violation.
* On September 25, 2014, October 1, 2014, and May 7, 2015, agents from the Los Angeles Office monitored the Station on frequency 152.2925 MHz, and determined that the Station continued to operate in a nearly continuous mode, with a duty cycle of 96 to 98%. On May 8, 2015, after the agents monitored the Station again, finding that the duty cycle was 97 to 98% and observing transmission intervals of 120 seconds on and 3 seconds off, the agents conducted an inspection of the Station accompanied by the owner of MRA. The agents 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. At the end of the inspection, MRA's owners modified the Station's transmitter to transmit 60 seconds and remain off for three seconds, a 95% duty cycle. Subsequent monitoring by the Los Angeles Office confirmed that the Station continues to operate with a 95% duty cycle.
* 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.
DISCUSSION
* We find that MRA apparently willfully and repeatedly violated of Sections 90.403(e) and 90.187(b) of the Rules, by failing to take reasonable precautions to avoid causing harmful interference, and by failing to monitor sufficiently to avoid harmful interference to other systems. Section 503(b) of the Communications Act of 1934, as amended (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.
A. MRA Apparently Violated Section 90.403(e) of the Rules by Failing to Take Reasonable Precautions to Avoid Causing Harmful Interference
* We find that the evidence in this case is sufficient to establish that MRA willfully and repeatedly violated Section 90.403(e) of the 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." Agents from the Los Angeles Office determined that MRA operated the Station 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. MRA failed to take precautions to avoid harmful interference and, consequently, its operation resulted in harmful interference to at least one co-channel licensee. When MRA was notified of this violation in the NOV, it responded that its voluntary efforts were consistent with Section 90.403(e), that there is no Commission "rule" that requires it to do more, and that a more precise requirement could only be enforced prospectively against MRA after a rulemaking took place. It also stated that it reduced the Station's power to avoid interference, and recently added Level 2 Monitoring at the Station.
* We find MRA's efforts failed to minimize the potential for causing interference as required by Section 90.403(e). MRA's chosen course of monopolizing a shared channel by utilizing it with a 95% duty cycle is unacceptable, regardless of its monitoring efforts and power decrease. We also disagree with MRA's assertion that we cannot enforce this rule absent a rulemaking. The Commission has already determined precisely what MRA must 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 Los Angeles agents observed MRA's transmissions on frequency 152.2925 MHz seriously degrading Eden's co-channel transmissions. Further, the investigation showed that MRA's operation continued to cause harmful interference to Eden's operations on frequency 152.2925 MHz, despite being notified of the interference more than two years earlier. As a result, we find that MRA apparently willfully and repeatedly violated Section 90.403(e) of the Rules by failing to take reasonable precautions to avoid causing harmful interference.
* MRA Apparently Violated Section 90.187(b) of the Rules by Failing to Employ Equipment and Engage in Monitoring Sufficient to Avoid Harmful Interference to Other Systems
* We find that the evidence in this case is sufficient to establish that MRA willfully and repeatedly violated Section 90.187(b) of the Rules. 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." Los Angeles agents determined that MRA operated the Station on a nearly continual basis, monitoring for co-channel use only 5% of the time. 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. The investigation by the Los Angeles Office revealed that MRA's system did not prevent its synchronizing signals from transmitting on the shared channels when a signal from another system was present and the level of monitoring it employed, which amounted to five seconds every five minutes and later to three seconds every 60 seconds, resulted in harmful interference to at least one other licensed station. As stated above, MRA's protestations to the contrary, it is simply unacceptable for any licensee on a shared channel to monopolize the channel at the levels attained by MRA, particularly when the licensee is causing harmful interference to a co-channel licensee. Neither the equipment utilized nor the level of monitoring employed ensured that MRA avoided causing harmful interference to Eden. As a result, MRA continually operated its Station on a shared frequency as if it were operating on an exclusive frequency by occupying the channel with synchronizing signals, effectively disregarding the Commission's requirements for operators on shared channels to monitor to avoid causing harmful interference. Thus, we find that MRA apparently willfully and repeatedly violated Section 90.187(b) of the Rules by failing to employ equipment and engage in monitoring that avoids harmful interference to other systems.
* Proposed Forfeiture
* MRA's repeated operation of its Station without regard to the harmful interference it is causing to a co-channel licensee warrants a significant penalty. Section 503(b)(2) of the Act authorizes us to assess a forfeiture against MRA of up to $16,000 for each day of a continuing violation, up to a statutory maximum of $122,500 for a single act or failure to act. In exercising our forfeiture authority, we must consider 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." In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator.
* The Commission's Forfeiture Policy Statement and Section 1.80 of the Rules set a base forfeiture of $7,000 for interference. The Los Angeles Office determined that MRA's operations, including its failure to employ an appropriate level of monitoring or take other precautions to avoid causing harmful interference, resulted in harmful interference to a co-channel licensee on June 4 and June 8, 2015. This requires a base forfeiture amount of $14,000. Because MRA continued to operate its Station in this manner despite being was notified by the Commission that its actions violated the Rules prior to the June 2015 investigation, we find that a significant upward forfeiture adjustment is warranted. Therefore, applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that MRA is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000).
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, Mobile Relay Associates is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for willful and repeated violations of Sections 90.403(e) and 90.187(b) 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, Mobile Relay Associates 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. Mobile Relay Associates shall also send electronic notification on the date said payment is made to WR-Response@fcc.gov. 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 selected:
* 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. Questions regarding payment procedures should be directed to 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. The statement must also be e-mailed 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 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 600, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Charles A. Cooper
District Director
Los Angeles Office
Western Region
Enforcement Bureau