*Pages 1--4 from Microsoft Word - 60621.doc* Federal Communications Commission Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Carnival Cruise Lines Inc. San Juan, Puerto Rico ) ) ) ) ) File Number: EB- 06- SJ- 024 NAL/ Acct. No. 200632680007 FRN 0015642390 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: October 24, 2006 By the Resident Agent, San Juan Field Office, South Central Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“ NAL”), we find that Carnival Cruise Lines (“ Carnival”) apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended (“ Act”), 1 by operating unlicensed radio transmitters. We conclude, pursuant to Section 503( b) of the Act, 2 that Carnival is apparently liable for a forfeiture in the amount of twenty thousand dollars ($ 20,000). II. BACKGROUND 2. In response to a complaint of interference, on May 8, 2006, an agent from the Commission’s San Juan Office of the Enforcement Bureau (“ San Juan Office”) monitored radio transmissions on the PCS F Block band (1. 890 GHz to 1.895 GHz) at the San Juan, Puerto Rico waterfront. The agent, using direction finding techniques, located the source of the transmissions to the Carnival cruise ship Triumph docked at the San Juan harbor. The signals transmitted from the Triumph could be clearly received from at least 300 feet from the ship. 3 A search of the Commission’s databases revealed no authorization for the Carnival Triumph to operate on these frequencies in the United States and its territories. 4 3. On June 18, 2006, an agent from the San Juan Office monitored radio transmissions on the PCS F Block band at the San Juan waterfront. The agent, using direction finding techniques, located the source of the transmissions to the Carnival cruise ship Destiny docked at the San Juan harbor. The signals 1 47 U. S. C. § 301. 2 47 U. S. C. § 503( b). 3 The agent measured the relative signal strength of the transmissions from the Triumph to be 15 dB above the noise floor at a location at least 300 feet from the transmitters. 4 Section 15.1( b) of the Commission’s Rules (“ Rules”) states that the operation of an intentional or unintentional radiator that is not in accordance with the regulations in this part must be licensed. 47 C. F. R. § 15. 1( b). Section 15. 5( b) states that intentional radiators operating under Part 15 must not cause any harmful interference to licensed users. Carnival’s operation of its transmitters caused harmful interference to the licensee of the PCS F Block band. Therefore, it can not operate these transmitters as non- licensed intentional radiators pursuant to Part 15. 1 Federal Communications Commission 2 transmitted from the Destiny could be clearly received from at least 700 feet from the ship. 5 A search of the Commission’s databases revealed no authorization for the Carnival Destiny to operate on these frequencies in the United States and its territories. 4. On June 22, 2006, an agent from the San Juan Office monitored radio transmissions on the PCS F Block band at the San Juan waterfront. The agent, using direction finding techniques, located the source of the transmissions to the Carnival cruise ship Elation docked at the San Juan harbor. The signals transmitted from the Elation could be clearly received from at least 700 feet from the ship. 6 A search of the Commission’s databases revealed no authorization for the Carnival Elation to operate on these frequencies in the United States and its territories. The agent was invited to board the Elation, where he was able to run tests with the Elation’s Electrical Officer. The tests showed that the interfering signals were generated by the ship’s internal Cellular System. 7 The Cellular System consisted of over one hundred hand sets and a mobile telephone system. 8 At the time of the inspection, the Elation’s Electrical Officer could not produce a license to operate a Cellular System or these transmitters in the United States and its territories. He also stated that the system had been installed on the Elation about two years ago. He mentioned that most of Carnival’s ships used the same system. He was warned that unlicensed operation of the ship’s internal Cellular System in the United States and its territories violated Section 301 of the Act, that operation of the Cellular System was creating interference, and that operations should cease. 5. On September 14, 2006, an agent from the San Juan Office monitored radio transmissions on the PCS F Block band at the San Juan waterfront. The agent, using direction finding techniques, again located the source of the transmissions to the docked Carnival cruise ship Elation. The signals transmitted from the Elation could be clearly received from at least 778 feet from the ship. 9 A search of the Commission’s databases revealed no authorization for the Carnival Elation to operate in these frequencies in the United States and its territories. 6. On September 17, 2006, an agent from the San Juan Office monitored radio transmissions on the PCS F Block band at the San Juan waterfront. The agent, using direction finding techniques, again located the source of the transmissions to the docked Carnival cruise ship Destiny. The signals transmitted from the Destiny could be clearly received from at least 778 feet from the ship. 10 A search of the Commission’s databases revealed no authorization for the Carnival Destiny to operate in these frequencies in the United States and its territories. 5 The agent measured the relative signal strength of the transmissions from the Destiny to be 15 dB above the noise floor at a location at least 700 feet from the transmitters. 6 The agent measured the relative signal strength of the transmissions from the Elation to be 15 dB above the noise floor at a location at least 700 feet from the transmitters. 7 Stations in the Public Mobile Services, including Cellular Services, must be operated only in accordance with a valid authorization issued by the Commission. 47 C. F. R. § 22. 3. 8 The resident agents found no evidence that the equipment was certified for use in the United States. Thus, even if Carnival did not cause harmful interference to a licensed user, it could not claim its operation fell under Part 15 of the Rules, because it was not using equipment certified for Part 15 use. See 47 C. F. R. § 15. 201( b). 9 The agent measured the relative signal strength of the transmissions from the Elation to be 10 dB above the noise floor at a location at least 778 feet from the transmitters. 10 The agent measured the relative signal strength of the transmissions from the Destiny to be 13 dB above the noise floor at a location at least 778 feet from the transmitters. 2 Federal Communications Commission 3 III. DISCUSSION 7. 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) has been interpreted to mean simply that the acts or omissions are committed knowingly. 11 The term “repeated” means the commission or omission of such act more than once or for more than one day. 12 8. Section 301 of the Act requires 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. 13 The Act specifically defines within the United States as transmissions or communications from one place within a Territory: to another place in the same Territory; to another State, Territory or possession of the United States; or to any place in a foreign country or to any vessel. Agents, using direction finding techniques, determined that Carnival operated radio transmitters on PCS F Block frequencies without a license from various cruise ships while docked at the San Juan harbor on May 8, June 18 and 22, September 14, and 17, 2006. On June 22, 2006, Carnival was warned orally that operation of a radio station without a license violates the Rules and the Act and that its operation was causing harmful interference. Based on the evidence before us, we find that Carnival apparently willfully and repeatedly violated Section 301 of the Act by operating radio transmission apparatus without a license on May 8, June 18, June 22, and September 14, and 17, 2006. 9. 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 is $10,000. 14 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 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. 15 Given the number of handsets in use on each cruise ship, the repeated nature of the violations despite an oral warning, and the commercial application for the unlicensed activity, we believe it appropriate to increase the forfeiture amount above the base forfeiture. Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors to the instant case, we conclude that Carnival is apparently liable for a $20,000 forfeiture IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Carnival Cruise 11 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that “[ t] he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 12 Section 312( f)( 2) of the Act, 47 U. S. C. § 312( f)( 2), which also applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that “[ t] he term 'repeated', when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.” 13 47 U. S. C. § 301. 14 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C. F. R. §1. 80. 15 47 U. S. C. § 503( b)( 2)( D). 3 Federal Communications Commission 4 Lines is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty thousand dollars ($ 20, 000) for violations of Section 301 of the Act. 16 11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Carnival Cruise Lines SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. 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. 13. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, South Central Region, San Juan Field Office, Room 762, Federal Building, San Juan, Puerto Rico 00918, and must include the NAL/ Acct. No. referenced in the caption. 14. 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. 15. Requests for payment of the full amount of this Notice of Apparent Liability for Forfeiture under an installment plan should be sent to: Associate Managing Director – Financial Operations, Room 1A625, 445 12th Street, S. W., Washington, D. C. 20554. 17 16. 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 Carnival Cruise Lines, San Juan, Puerto Rico. FEDERAL COMMUNICATIONS COMMISSION William Berry Resident Agent San Juan Field Office South Central Region Enforcement Bureau 16 47 U. S. C. §§ 301, 503( b); 47 C. F. R. §§ 0. 111, 0. 311, 1.80. 17 See 47 C. F. R. § 1.1914. 4