*Pages 1--5 from Microsoft Word - 7632.doc* Federal Communications Commission DA 01- 714 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Page- Comm ) File No. EB- 00- TS- 078 ) Licensee of Paging Station KPS323 ) NAL/ Acct. No. 200132100006 Leavenworth, Texas ) ) FORFEITURE ORDER Adopted: March 19, 2001 Released: March 21, 2001 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order (“ Order”), we issue a monetary forfeiture in the amount of three thousand dollars ($ 3,000) to Page- Comm for willful violation of Section 301 of the Communications Act of 1934, as amended (“ Act”) 1 and Section 22. 3 of the Commission’s Rules (“ Rules”). 2 The noted violation involves Page- Comm’s operation of a paging system without Commission authorization. 2. On November 29, 2000, the Enforcement Bureau issued a Notice of Apparent Liability for Forfeiture (“ NAL”) in the amount of five thousand dollars ($ 5,000) to Page- Comm for the noted violation. 3 Page- Comm filed a response to the NAL on December 21, 2000. II. BACKGROUND 3. Page- Comm’s authorization for Station KPS323 expired on April 1, 1999. On January 5, 2000, Page- Comm filed an application for renewal of the authorization for that station and requested a waiver of Section 1.949 of the Rules. 4 Page- Comm’s waiver request indicated that Page- Comm operated paging facilities without authorization between April 1, 1999 and January 5, 2000. On February 20, 2000, the Wireless Telecommunications Bureau granted Page- Comm’s waiver request and reinstated its authority to operate Station KPS323. 4. On November 29, 2000, the Enforcement Bureau issued an NAL for a forfeiture in the amount of $5,000 to Page- Comm for operating a paging system without Commission authorization in 1 47 U. S. C. § 301. 2 47 C. F. R. § 22. 3. 3 Page- Comm, DA 00- 2666 (Enf. Bur., rel. November 29, 2000). 4 47 C. F. R. § 1. 949. 1 Federal Communications Commission DA 01- 714 2 violation of Section 301 of the Act and Section 22.3 of the Rules. Page- Comm filed a response to the NAL on December 21, 2000, seeking cancellation or reduction of the forfeiture. In this response, Page-Comm argues that the one- year statute of limitations in Section 503( b)( 6)( B) of the Act 5 precludes the Commission from assessing a forfeiture for any unauthorized operation of Station KPS323 that occurred more than one year prior to the date of the NAL, and that the unauthorized operation of Station KPS323 for the period from November 29, 1999 to January 21, 2000, 6 does not warrant a $5, 000 forfeiture. In addition, Page- Comm asserts that the proposed forfeiture should be reduced because the subject violation involves only a single license and the Commission has imposed the same forfeiture amount, $5, 000, in similar cases involving multiple paging licenses. Page- Comm also argues that the proposed forfeiture should be reduced because (1) the violation was purely a ministerial oversight and Page- Comm took steps to come into compliance with the Commission’s rules as soon as it became aware that the license had expired; (2) the proposed forfeiture significantly exceeds the value of the license; (3) the unauthorized operation of Station KPS323 did not cause interference or otherwise negatively affect the provision of any other telecommunications service; and (4) Page- Comm has a history of overall compliance with the Commission’s rules. III. DISCUSSION 5. As the NAL explicitly states, the forfeiture amount in this case was assessed in accordance with Section 503 of the Communications Act of 1934, as amended (“ Act”), 7 Section 1.80 of the Rules, 8 and The Commission’s Forfeiture Policy Statement and Amendment of Section 1. 80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (“ Policy Statement”). In examining Page- Comm’s response, Section 503( b) of the Act requires that the Commission 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 other such matters as justice may require. 9 6. 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 22.3 of the Rules provides, in pertinent part, that stations in the Public Mobile Service must be operated with a valid Commission authorization. We conclude that Page- Comm willfully and repeatedly violated Section 301 of the Act and Section 22.3 of the Rules by operating Station KPS323 without Commission authorization between April 1, 1999 and January 5, 2000. 5 Section 503( b)( 6)( B) of the Act provides that “[ n] o forfeiture penalty shall be determined or imposed against any person under this subsection if } such person does not hold a broadcast station license issued under title III of this Act and if the violation charged occurred more than 1 year prior to the date of issuance of the required notice or notice of apparent liability.” 47 U. S. C. § 503( b)( 6)( B). 6 Page- Comm states that the Wireless Bureau granted it Special Temporary Authority on January 21, 2000 to continue operating Station KPS323. 7 47 U. S. C. § 503( b). 8 47 C. F. R. § 1. 80. 9 47 U. S. C. § 503( b)( 2)( D). 2 Federal Communications Commission DA 01- 714 3 7. Page- Comm is correct that the one- year statute of limitations in Section 503( b)( 6)( B) of the Act precludes the Commission from imposing a forfeiture for the unauthorized operation of Station KPS323 that occurred before November 29, 1999 (one year prior to the issuance of the NAL). However, the Commission may lawfully look at facts arising before that date in determining an appropriate forfeiture amount. In Eastern Broadcasting Corp., 10 FCC 2d 37 (1967), the Commission held that it could consider matters occurring outside the statute of limitations period in determining the appropriate forfeiture for acts that occurred inside the statute of limitations period. Similarly, in Roadrunner Transportation, Inc., 15 FCC Rcd 9669, 9671 (2000), the Commission considered the fact that the violations began in 1996, which was outside the applicable statute of limitations period, to establish the context for determining an appropriate forfeiture amount for violations that occurred from June 1, 1998 to September 29, 1998. In the instant case, we found Page- Comm apparently liable for a forfeiture for the unauthorized operation of Station KPS323 for the period from November 29, 1999 to January 5, 2000. While we did not find Page- Comm apparently liable for a forfeiture for conduct which occurred prior to November 29, 1999, we properly considered the fact that the unauthorized operation of Station KPS323 began April 1, 1999 to place the violation in context and establish the duration and continuing nature of the violation. Moreover, as noted in the NAL, Page- Comm operated a station without Commission authorization under circumstances where the Commission has envisioned “more significant fines or forfeitures” for violations in excess of 30 days. 10 Thus, we reject Page- Comm’s argument that its unauthorized operation of Station KPS323 for the period from November 29, 1999 to January 20, 2000 does not warrant a $5, 000 forfeiture. 8. In addition, we disagree with Page- Comm’s assertion that the proposed forfeiture should be reduced because the Commission has imposed the same $5, 000 forfeiture amount in similar cases involving multiple paging licenses. In the cases cited by Page- Comm, 11 we declined to engage in a strict mathematical exercise of multiplying the base forfeiture amount times the number of stations involved and instead determined that the number of stations should be treated as an aggravating factor warranting an increased forfeiture where a larger number of stations is involved. 12 The Commission has previously used this approach in other contexts, 13 and we believe that it was appropriately used in this context as well. 9. Of Page- Comm’s remaining arguments, only its history of compliance argument warrants mitigation of the forfeiture amount. While we recognize that unauthorized operation in the context of failure to file a renewal application is not as serious as in other contexts (e. g., pirate radio), that fact has 10 See 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, 14 FCC Rcd 11476, 11485- 11486 (1999). 11 Data Investments, Inc. d/ b/ a Star Communications, DA 00- 2668 (Enf. Bur., rel. November 29, 2000); Joe L. Ford d/ b/ a Ford Communications, DA 00- 2665 (Enf. Bur., rel. November 29, 2000). 12 See e. g., Commercial Radio Service Corp., DA 00- 2755 (Enf. Bur., rel. December 11, 2000) (treating the number of stations as an aggravating factor and assessing a $6, 000 forfeiture where the licensee operated eleven stations without Commission authorization after expiration of the licenses). 13 See Roadrunner Transportation, Inc., 15 FCC Rcd 9669, 9672 (2000) (declining to use a strict mathematical formula of multiplying the base forfeiture amount for an unauthorized transfer of control times the number of stations involved); Central Illinois Public Service Company, 15 FCC Rcd 1750, 1753 (1999) (same). 3 Federal Communications Commission DA 01- 714 4 been reflected in the original downward adjustment from the $10,000 base amount. 14 We do not believe a further reduction on the basis that the failure to file a renewal application was a “ministerial oversight” is appropriate, particularly given the Commission’s statement quoted above. Additionally, Page- Comm’s remedial actions to correct the violation, while commendable, are not a mitigating factor. See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973). Regarding Page- Comm’s argument that the proposed forfeiture amount exceeds the value of the license, we note that Page- Comm does not claim that payment of the forfeiture will create a financial hardship or provide documentation to support a financial hardship claim. Further, an absence of interference does not entitle Page- Comm to a reduction of the forfeiture amount under the Commission’s downward adjustment criteria for forfeitures. 15 However, after considering Page- Comm’s overall history of compliance with the Commission’s rules, we conclude that it is appropriate to reduce the forfeiture from $5,000 to $3,000. 10. We have examined Page- Comm’s response to the NAL pursuant to the statutory factors above, and in conjunction with the Policy Statement as well. As a result of our review, we conclude that Page- Comm has failed to provide sufficient justification for canceling the proposed forfeiture amount, but has provided justification for reducing it to $3, 000. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Act, and Sections 0.111, 0. 311 and 1.80( f)( 4) of the Rules, 16 Page- Comm IS LIABLE FOR A MONETARY FORFEITURE in the amount of three thousand dollars ($ 3, 000) for operating a paging system without Commission authorization in willful and repeated violation of Section 301 of the Act and Section 22.3 of the Rules. 12. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Rules 17 within 30 days of the release of this Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for collection pursuant to section 504( a) of the Act. 18 Payment may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should note the NAL/ Acct. No. 200132100006. Requests for full payment under an installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 19 14 Page- Comm, DA 00- 2666 (Enf. Bur., rel. November 29, 2000). 15 See Policy Statement, 12 FCC Rcd at 17116; 47 C. F. R. § 1. 80( b), note to paragraph (b)( 4), Section II. Adjustment Criteria for Section 503 Forfeitures. 16 47 C. F. R. §§ 0. 111, 0.311, 1. 80( f)( 4). 17 47 C. F. R. § 1. 80. 18 47 U. S. C. § 504( a). 19 See 47 C. F. R. § 1.1914. 4 Federal Communications Commission DA 01- 714 5 13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by Certified Mail Return Receipt Requested to Page- Comm, Attn.: Kent N. Redford, P. O. Box 493, Leavenworth, KS 66048, and its counsel, Pamela Gaary, Esq., Lukas, Nace, Gutierrez & Sachs, Chartered, 1111 19th Street, N. W. Suite 1200, Washington, D. C. 20036. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 5