*Pages 1--4 from Microsoft Word - 52440.doc* Federal Communications Commission Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Anderson Desk Company San Diego, California ) ) ) ) ) ) ) File Number: EB- 05- SD- 031 NAL/ Acct. No: 200532940002 FRN: 0009- 9808- 55 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: September 28, 2005 By the District Director, San Diego Office, Western Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (" NAL"), we find that Anderson Desk Company (" Anderson"), in San Diego, California, apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended (“ Act”), 1 by operating an unlicensed microwave radio station on microwave channels 21225.0 MHz and 22461.25 MHz. 2 We conclude, pursuant to Section 503( b) of the Act, 3 that Anderson is apparently liable for a forfeiture in the amount of ten thousand dollars ($ 10,000). II. BACKGROUND 2. On February 4, 2005, an agent from the Commission’s San Diego Office was investigating allegations that companies in the Otay Mesa area of San Diego were using unauthorized microwave radio stations to communicate with sister companies across the U. S. – Mexico border in Tijuana, Mexico. The agent monitored and measured the transmissions of a microwave radio station operated at an office occupied by Anderson Desk Company, a manufacturer of office furniture, at 7510 Airway Road, San Diego, California. The frequency measurement of this microwave radio station was 21224.0 MHz. 3. A review of the Commission’s database revealed that Anderson has no authorization to operate a point- to- point microwave radio station. However, a pending application, filed by Anderson on September 23, 2004, for frequency 22461.25 MHz at the 7510 Airway Road location was found. 4 1 47 U. S. C. § 301. 2 47 C. F. R. § 101.147( s). 3 47 U. S. C. § 503( b). 4 See File No. 0000281783. Pursuant to Sections 101. 31( b)( 1) and 101. 31( b)( 1)( v) of the Rules, 47 C. F. R. §§ 101. 31( b)( 1), 101.31( b)( 1)( v), certain applicants for point- to- point microwave stations, not located within 56. 3 (continued....) 1 Federal Communications Commission 2 4. The San Diego agent returned to the Anderson office on February 9, 2005, and again made measurements showing that the microwave radio station was operating on the microwave channel 21225.0 MHz. 5 An inspection was attempted, but no one was available to make the station available for inspection at that time. 5. On February 28, 2005, the San Diego agent returned to the Anderson office and again measured the microwave radio station operating on microwave channel 21225.0 MHz. At this time the agent conducted an inspection of the radio station with an Anderson staff member. The agent requested a copy of Anderson’s station authorization for its microwave radio station, but only a copy of the September 23, 2004, pending application could be found at the Anderson office. 6. On March 11, 2005, the San Diego Office sent a Letter of Inquiry (“ LOI”) to Anderson concerning its operation on an unauthorized frequency of 21224.0 MHz, in violation of Section 301 of the Act. 6 The San Diego Office received a reply to the LOI on March 23, 2005. In its reply, Anderson states that this radio station was used for internal business communications between Anderson’s U. S and Mexican facilities. Anderson acknowledges that it began operating this microwave radio station in 2000 on frequency 22461.25 MHz and had replaced some defective equipment in December 2004. At that time, frequency 21224.0 MHz was installed. Anderson further states that the repaired unit is now back in service and that “the operation frequency is 22461.25.” Anderson also acknowledged that its pending application for authority to operate on 22461.25 MHz had not yet been granted. 7. On May 20, 2005, Anderson’s pending application was granted under the call sign of WQCT534 for frequency 22461. 25 MHz. However, the licensed geographical coordinates for WQCT534 do not match the coordinates of the actual transmitter location of 7510 Airway Road, San Diego, California. The difference between the two locations is approximately 3.95 km. III. DISCUSSION 8. Section 503( b) of the 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. The term "willful" as used in Section 503( b) of the Act has been interpreted to mean simply that the acts or omissions are committed knowingly. 7 The term “repeated” means the commission or omission of such act more than once or for more than one day. 8 (... continued from previous page) kilometers of any international border, operating in certain frequency bands, are deemed to have conditional authority to operate their proposed stations during the pendency of their applications. The frequency proposed for use by Anderson Desk in its application is not contained in these frequency bands. Also, Anderson Desk’s proposed station is located approximately 1. 5 km from the Mexican border. 5 The actual measurement made by the agent showed that the station was operating on 21224.0 MHz. 6 21224.0 MHz is within the maximum allowable tolerance of microwave channel 21225.0 MHz. See 47 C. F. R. § 101.147( s). 7 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that "[ t] he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act…." See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 8 Section 312( f)( 2) of the Act, 47 U. S. C. § 312( f)( 2), which also applies to violations for which forfeitures are (continued....) 2 Federal Communications Commission 3 9. Section 301 of the Act requires that no person shall use or operate any apparatus for the transmission of energy of communications or signals by radio within the United States except under and in accordance with the Act and with a license. On February 4, 2005, February 9, 2005, and February 28, 2005, measurements made by a San Diego agent revealed that Anderson was operating a microwave radio station on the frequency 21224.0 MHz. A review of Commission records indicated that Anderson had no authorization to operate on 21224.0 MHz. The review also indicated that Anderson had a pending application, but no authorization, to operate on 22461.25 MHz. On March 23, 2005, Anderson acknowledged operating a microwave station on the frequencies of 22461.25 MHz and 21224.0 MHz since 2000. Anderson also acknowledged that it had no license, only a pending application, to operate such a station. 10. Anderson was aware licensing for its station was required, as evidenced by its license application, and admits that its microwave radio station has been operating on either 22461.25 or 21224.0 MHz since it was first installed in 2000. Therefore, Anderson’s violation was willful. The violation occurred on more than one day, therefore, it was repeated. Based on the evidence before us, we find that Anderson apparently willfully and repeatedly violated Section 301 of the Act by operating a microwave radio station without authorization. 11. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1. 80 of the Rules to Incorporate the Forfeiture Guidelines (" Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base forfeiture amount for operation without an instrument of authorization for the service is $10,000. 9 In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503( b)( 2)( D) of the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to the violator, the degree of culpability, and history of prior offenses, ability to pay, and other such matters as justice may require. 10 Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors, we conclude that Anderson is apparently liable for a forfeiture in the amount of $10,000. 12. We will also require Anderson to file a report with the District Director of the San Diego Office concerning Anderson’s efforts to bring its microwave radio station into compliance with the terms of its authorization for station WQCT534. Specifically, Anderson must detail how it has relocated its transmitter to the coordinates specified in the station authorization, or how it has amended its authorization to accurately reflect the location of the transmitter. IV. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Anderson Desk Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($ 10, 000) for violation of Section 301 of the Act. 11 (... continued from previous page) assessed under Section 503( b) of the Act, provides that "[ t] he term 'repeated', when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.” 9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C. F. R. §1. 80. 10 47 U. S. C. § 503( b)( 2)( D). 11 47 U. S. C. §§ 301, 503( b), 47 C. F. R. §§ 0.111, 0.311, 1.80. 3 Federal Communications Commission 4 14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules, within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture, Anderson Desk Company SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 15. IT IS FURTHER ORDERED that Anderson Desk Company SHALL FILE, within thirty (30) days of the release of this Notice, a report with the District Director, San Diego Office, concerning Anderson Desk Company’s efforts to come into compliance with the authorization for station WQCT534, as detailed above. 16. Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/ Acct. No. and FRN No. referenced above. Payment by check or money order may be mailed to Federal Communications Commission, P. O. Box 358340, Pittsburgh, PA 15251- 8340. Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911- 6106. 17. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Western Region, San Diego Office, 4542 Ruffner Street, Suite 370, San Diego, California 92111, within thirty (30) days from the release date of this Notice of Apparent Liability for Forfeiture and must include the NAL/ Acct. No. referenced in the caption. 18. 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. 19. Requests for payment of the full amount of this Notice of Apparent Liability for Forfeiture under an installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 12 20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Anderson Desk Company at its address of record. FEDERAL COMMUNICATIONS COMMISSION William R. Zears, Jr. District Director San Diego Office Western Region Enforcement Bureau 12 See 47 C. F. R. § 1.1914. 4