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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
COMMERCIAL RADIO SERVICE CORP. )
Licensee of Specialized Mobile Radio Stations )
WPFV467, WPFV649, WPFV705, WPFV707, )
WPFV709, WPFV852, WPFV924, WPFV929, )
WPFV961, WPFV962 and WPFU496 ) File No. EB-00-TS-232
Various locations in North Carolina and ) NAL/Acct.
No. 200132100009
Virginia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 7, 2000 Released:
December 11, 2000
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture, we
find that Commercial Radio Service Corp. (Commercial Radio),
operated 800 MHz Conventional Specialized Mobile Radio (SMR)
stations without Commission authorization, in apparent violation
of Section 301 of the Communications Act of 1934 (``Act'')1, as
amended, and Section 1.903(a) of the Commission's Rules
(``Rules'').2 We conclude that Commercial Radio is apparently
liable for a forfeiture in the amount of six thousand dollars
($6,000).
II. Background
2. Commercial Radio's authorizations for the SMR stations
expired on the dates indicated: WPFV467 (10/18/99), WPFV649
(10/21/99), WPFV705 (10/21/99), WPFV707 (10/21/99), WPFV709
(10/21/99), WPFV852 (10/21/99), WPFV924 (10/19/99), WPFV929
(10/20/99), WPFV961 (10/21/99), WPFV962 (10/21/99) and WPFU496
(10/11/99). On March 24, 2000, Commercial Radio filed
applications for renewal of the authorizations for the stations
and requested the waiver of Section 1.949 of the Commissions
Rules.3 Commercial Radio's waiver request indicates that
Commercial Radio apparently operated SMR stations without
authorization between October, 1999 and March 24, 2000. On
August 8, 2000, the Commission granted Commercial Radio's waiver
request and reinstated its authority to operate the above
mentioned SMR stations.
II. Discussion
3. Section 301 of the Act sets forth the general mandate
that no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio
within the United States except under and in accordance with the
Act and with a license. Section 1.903(a) of the Commission's
Rules provides, in pertinent part, that stations in the SMR
service must be operated with a valid Commission authorization.
We conclude that Commercial Radio operated SMR stations without
valid licenses between October, 1999 and March 24, 2000, in
apparent willful and repeated violation of Section 301 of the
Communications Act and Section 1.903(a) of the Rules.
4. In the Universal Licensing System Memorandum Opinion and
Order on Reconsideration(MO&O)4, the Commission noted that the
Wireless Telecommunications Bureau, after reviewing the
circumstances concerning a late filed renewal application, may,
in its discretion, initiate enforcement action against a licensee
for unauthorized operation.5 Moreover, the Commission stated in
the MO&O that applications for renewal received more than 30 days
after the expiration of the license may lead to ''more
significant fines or forfeitures.'' In this case, Commercial
Radio operated without valid licenses for approximately five
months after the licenses expired.
5. The guidelines contained in the Commission's Forfeiture
Policy Statement, 12 FCC Rcd 17087, 17113 (1997), recon. denied,
15 FCC Rcd 303 (1999), specify a base forfeiture amount of
$10,000 for operation without an instrument of authorization for
the service. Section 503(b)(2)(D) of the Act6 requires the
Commission to 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 this
case, Commercial Radio failed to file applications for renewal
and operated eleven SMR stations for over five months under
circumstances where the Commission has envisioned ``more
significant fines or forfeitures'' for violations in excess of 30
days. On the other hand, Commercial Radio had previously been
licensed, so this is not comparable to ``pirate'' wireless
operations, which typically have been subject to forfeitures of
approximately $10,000.7 Taking into consideration all of the
factors required by Section 503(b)(2)(D) of the Act and the
Forfeiture Policy Statement, we conclude that a forfeiture of
$6,000 is warranted.
III. Ordering Clauses
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act8 and Sections 0.111, 0.311 and 1.80 of the
Rules9, Commercial Radio is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of $6,000 for violation
of Section 301 of the Communications Act of 1934, as amended, and
Section 1.903(a) of the Commission's Rules. The amount specified
was determined after consideration of the factors set forth in
Section 503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D) and the
guidelines enumerated in the Forfeiture Policy Statement.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release of this
NOTICE OF APPARENT LIABILITY, Commercial Radio SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No.: 200132100009.
9. The response if any must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, SW, Washington, D.C.
20554, Ref: EB-00-TS- 232, NAL/Acct. No.: 20032100009.
10. 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 (``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.
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
SW, Washington, D.C. 20554.10
12. IT IS FURTHER ORDERED THAT this notice shall be sent,
by certified mail, receipt requested, to counsel for Commercial
Radio Service Corp., Lukas, Nace, Gutierrez & Sachs, Attention
Marilyn S. Mense, 1111 19th Street, NW, 12th Floor, Washington,
DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Technical and Public Safety
Division
Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 1.903(a).
3 47 C.F.R. § 1.949. This Section provides , in pertinent part,
that ``Applications for renewal of authorizations in the Wireless
Radio Services must be filed no later than the expiration date of
the authorization for which renewal is
sought. . . .''
4 Biennial Regulatory Review -- Amendment of Parts 0, 1, 13,
22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's
Rules to Facilitate the Development and Use of the Universal
Licensing System in the Wireless Telecommunications Services,
Memorandum Opinion and Order upon reconsideration, 14 FCC Rcd
11476, 11485-11486 (1999).
5 The enforcement responsibilities of the Wireless
Telecommunications Bureau are now with the Enforcement Bureau.
See 47 C.F.R. § 0.111.
6 47 U.S.C. §503(b)(2)(D).
7 See, e.g., Jean R. Jonassaint, 15 FCC Rcd 10422 (Enf. Bur.
2000).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, and 1.80.
10 See 47 C.F.R. § 1.1914