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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Saga Radio Networks, LLC ) File No. EB-08-SE-543
Satellite Earth Station, Call Sign ) NAL/Acct. No. 200832100063
E872070
) FRN: 0009112400
Grosse Pointe Farms, MI
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 28, 2008 Released: July 30, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Saga
Radio Networks, LLC ("Saga"), former licensee of satellite earth
station, call sign E872070, Grosse Pointe Farms, Michigan, apparently
liable for forfeiture in the amount of five thousand, two hundred
dollars ($5,200) for operating its earth station without Commission
authority and for failing to file a timely renewal application. Saga
acted in apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended, ("Act") and Sections 25.102(a)
and 25.121(e) of the Commission's Rules ("Rules").
II. background
2. Saga's license for its Ku-band fixed satellite service earth station,
call sign E872070, expired on August 28, 2007. On May 14, 2008, Saga
became aware that its license for the earth station had expired. On
May 28, 2008, Saga filed a request for special temporary authority
("STA") to operate the earth station pending grant of an application
for a new earth station license. On July 29, 2008, the International
Bureau granted Saga a new license for earth station E872070 and
dismissed the STA request as moot.
3. Because it appeared that Saga may have operated the earth station
without authority after expiration of its license, the International
Bureau referred this case to the Enforcement Bureau for investigation
and possible enforcement action. On June 11, 2008, the Enforcement
Bureau's Spectrum Enforcement Division ("Division") issued a letter of
inquiry ("LOI") to Saga.
4. In its July 11, 2008 response to the LOI, Saga states that it first
became aware on May 14, 2008 that its license for earth station
E872070 had expired. On this date, Saga's Business Manager discovered
the expired license during a review of Saga's authorizations database.
The Business Manager, upon realizing the error, immediately notified
Saga's Director of Engineering who, in turn, promptly contacted the
appropriate parties to remedy the situation. In addition, Saga
acknowledges that it has operated earth station E872070 without
authority after August 28, 2007.
III. discussion
5. 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. Section 25.121(c)
of the Rules provides that the license term for an earth station is
specified in the instrument of authorization. Section 25.121(e) of the
Rules requires the licensee of an earth station to file its renewal
application "no earlier than 90 days, and no later than 30 days,
before the expiration date of the license." Absent a timely filed
renewal application, an earth station license automatically terminates
at the end of the license period.
6. As a Commission licensee, Saga was required to maintain and timely
renew its authorization in order to operate its earth station. Saga
concedes that it has operated earth station E872070 without Commission
authority after August 28, 2007. By operating earth station E872070
without Commission authorization, Saga apparently violated Section 301
of the Act and Section 25.102(a) of the Rules. Saga also acted in
apparent violation of Section 25.121(e) of the rules by failing to
file a timely renewal application for the station.
7. Section 503(b) of the Act and Section 1.80(a) of the Rules provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeated" means more than once. Based on the record before
us, it appears that Saga's violations of Section 301 of the Act and
Sections 25.102(a) and 25.121(e) of the Rules were willful and
repeated.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "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." Having considered the statutory factors, as explained below,
we propose a total forfeiture of $5,200.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and $3,000 for
failure to file required forms or information. As the Commission has
held, a licensee's continued operations without authorization and its
failure to timely file a renewal application constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Saga's separate violations.
10. Consistent with precedent, we propose a forfeiture in the amount of
$1,500 for Saga's failure to timely file a renewal application within
the time period specified in Section 25.121(e) of the Rules.
Additionally, we propose a forfeiture in the amount of $5,000 for
Saga's unauthorized operation of earth station E872070 after August
28, 2007. In proposing a forfeiture of $5,000 for the station's
unauthorized operation, we recognize that the Commission considers a
licensee who operates a station with an expired license in better
stead than a pirate broadcaster who lacks prior authority, and thus
downwardly adjust the $10,000 base forfeiture amount accordingly.
Thus, we propose an aggregate forfeiture of $6,500 ($1,500 for failure
to timely file a renewal application and $5,000 for unauthorized
operation).
11. As a Commission licensee, Saga is charged with the responsibility of
knowing and complying with the terms of its authorizations, the Act
and the Rules. Concerning Saga's claim that its failure to timely
renew its license was inadvertent, the Commission has long held that a
downward adjustment of an assessed forfeiture is not justified where
violators claim their actions or omissions were due to inadvertent
errors. We do find, however, that a downward adjustment of the
proposed aggregate forfeiture from $6,500 to $5,200 is warranted
because Saga made voluntary disclosures to Commission staff and
undertook corrective measures after learning of its violations, but
prior to any Commission inquiry or initiation of enforcement action.
IV. ordering clauses
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Saga IS hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
five thousand, two hundred dollars ($5,200) for the willful and
repeated violation of Section 301 of the Act and Sections 25.102(a)
and 25.121(e) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Saga SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Saga will also send electronic
notification on the date said payment is made to Kathy Berthot at
Kathy.Berthot@fcc.gov.
15. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
16. 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; 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.
17. 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 Gary S. Smithwick, Esq., Counsel for Saga
Radio Networks, LLC, Smithwick & Belendiuk, P.C., 5028 Wisconsin
Avenue, NW, Washington, DC 20016 and Mr. Gregory Urbiel, Saga Radio
Networks, LLC, 73 Kercheval Avenue, Grosse Pointe Farms, MI 48236.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 25.102(a) and 25.121(e).
See File No. SES-LIC-20080613-00772.
See File No. SES-STA-20080528-00682.
Letter from Kathryn Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Gregory Urbiel,
Saga Radio Networks, LLC (June 11, 2008).
Letter from Gary S. Smithwick, Esq., Counsel for Saga Radio Networks, LLC,
to Zachary Rothstein, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (July 11, 2008) ("LOI Response").
Id. at 2
Id.
Id.
47 U.S.C. S: 301; 47 C.F.R. S: 25.102(a).
47 C.F.R. S: 25.121(c).
47 C.F.R. S: 25.121(e).
47 C.F.R. S: 25.161.
LOI Response at 2.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under Section 503(b) of the Act) ("Southern California").
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report
and Order, 12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303
(1999).
47 C.F.R. S: 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7438 (2004)
("Discussion Radio"). See also La Carpa Corp., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 2744, 2745 (Enf. Bur., Spectrum Enf.
Div., 2007) (forfeiture paid) ("La Carpa"); Lazer Broadcasting Corp.,
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 8710, 8712 (Enf.
Bur., Spectrum Enf. Div., 2006) (forfeiture paid) ("Lazer"); Shared Data
Networks, LLC, Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
18184, 18186 (Enf. Bur., Spectrum Enf. Div., 2005) (forfeiture paid).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
against a broadcaster for failure to timely file its renewal application).
See also La Carpa, 22 FCC Rcd at 2746 (proposing a $1,500 forfeiture
against an earth station operator for failure to timely file a renewal
application); Lazer, 21 FCC Rcd at 8712 (proposing a $1,500 forfeiture
against an earth station operator for failure to timely file a renewal
application).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a broadcast station for 14 months beyond the expiration of
its license); La Carpa, 22 FCC Rcd at 2746 (proposing a $5,000 forfeiture
for operating an earth station for three years after the expiration of its
license); Lazer, 21 FCC Rcd at 8712 (proposing a $5,000 forfeiture for
operating an earth station for one year after the expiration of its
license).
PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC
Rcd 2088 (1992); Southern California, 6 FCC Rcd at 4387 (stating that
"inadvertence ... is at best, ignorance of the law, which the Commission
does not consider a mitigating circumstance").
See Petracom of Texarkana, LLC, 19 FCC Rcd 8096, 8097-8098 (Enf. Bur.,
2004); Lazer, 21 FCC Rcd at 8712.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
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(continued....)
Federal Communications Commission DA 08-1750
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Federal Communications Commission DA 08-1750