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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-06-SE-330
)
General Growth Properties NAL/Acct. No. 200732100021
)
Waterbury, Connecticut FRN # 0005261128
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 29, 2007 Released: April 2, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find General
Growth Properties ("GGP"), former licensee of Private Land Mobile
Radio Service ("PLMRS") station WPPT427, in Waterbury, Connecticut,
apparently liable for a forfeiture in the amount of nine thousand, two
hundred dollars ($9,200) for operating a PLMRS station without
Commission authority, failing to file a timely renewal application for
the station and failing to respond to directives of the Enforcement
Bureau ("Bureau") to provide certain information and documents. GGP
acted in apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"), and Sections 1.903 and
1.949(a) of the Commission's Rules ("Rules").
II. background
2. GGP was granted a PLMRS station license under call sign WPPT427 on
April 3, 2000, with an expiration date of April 3, 2005. GGP's license
to operate station WPPT427 expired on April 3, 2005, because it failed
to file a renewal application. On April 17, 2006 - over a year after
its authorization expired - GGP filed a request for Special Temporary
Authorization ("STA") to operate the station until action was taken on
its application for a new license. On April 18, 2006, the Wireless
Telecommunications Bureau granted GGP STA to continue operating the
station under call sign WQEU522 without prejudice to any enforcement
action for unauthorized operations. On May 9, 2006, GGP filed an
application for a new PLMRS station license, which the Wireless
Telecommunications Bureau granted on May 11, 2006 (call sign WQEX620).
3. Because it appeared that GGP may have operated the PLMRS station after
the expiration of its license under call sign WPPT427, the Wireless
Telecommunications Bureau referred this case to the Enforcement Bureau
for investigation and possible enforcement action. On September 27,
2006, the Bureau's Spectrum Enforcement Division ("Division") issued a
letter of inquiry ("LOI") to GGP. The LOI directed GGP to submit a
response within 30 business days. The LOI also explained that failure
to appropriately respond may constitute a violation of the
Communications Act and Rules. GGP did not respond within the
applicable time period. On December 14, 2006, the Division issued a
second LOI to GGP. On December 18, 2006, Mr. James P. Grace, III ("Mr.
Grace") contacted Division staff by telephone to discuss the second
LOI. He stated that although he renewed the license, he did not think
that he was the one that should answer the inquiry. Division staff
explained that Mr. Grace could respond, or, alternatively, send the
letter to someone in his organization who could answer the letter. GGP
did not respond to the second LOI.
III. discussion
4. Section 301 of the Act and Section 1.903 of the Rules prohibit the use
or operation of any apparatus for the transmission of energy,
communications or signals by a wireless radio station except under,
and in accordance with, a Commission granted authorization.
Additionally, Section 1.949(a) of the Rules requires licensees to file
renewal applications for wireless radio stations, "no later than the
expiration date of the authorization for which renewal is sought, and
no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates.
5. As a Commission licensee, GGP is required to maintain a current
authorization to operate its station. GGP apparently operated the
station without authorization for over a year -- from April 3, 2005 to
April 17, 2006. By operating its station without authorization, GGP
apparently willfully and repeatedly violated Section 301 of the Act
and Section 1.903 of the Rules. GGP also acted in apparent violation
of Section 1.949(a) of the Rules by failing to file a timely renewal
application for the station.
6. Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch business
and to the ends of justice." Section 403 likewise grants the
Commission "full authority and power ... to institute an inquiry, on
its own motion ... relating to the enforcement of any of the
provisions of this Act." Pursuant to that authority, the Bureau twice
ordered GGP to submit a timely written response to its LOIs and to
provide the information and documents requested. Twice GGP failed to
respond as directed. It is well settled that a party cannot ignore the
directives in a Bureau letter of inquiry.
7. Section 503(b) of the Act, and Section 1.80 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 "repeatedly" means more than once. Based upon the record
before us, it appears that GGP's violations of Section 301 of the Act
and Sections 1.903 and 1.949(a) were willful and repeated. It also
appears that GGP willfully and repeatedly failed to respond to a
Bureau order.
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 an aggregate forfeiture in the amount of $9,200.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information, and ten thousand dollars ($10,000) for operation of a
station without Commission authority. As the Commission recently held,
a licensee's failure to timely file a renewal application and its
continued operation without authorization constitute separate
violations of the Act and the rules and warrant the assessment of
separate forfeitures. Accordingly, we propose separate forfeiture
amounts for GGP's separate violations.
10. Consistent with precedent, we propose a $1,500 forfeiture for GGP's
failure to file the renewal application for its PLMRS station within
the time period specified in Section 1.949(a) of the Rules.
Additionally, we propose a $5,000 forfeiture for GGP's continued
operation of its PLMRS station after the expiration of its license on
April 3, 2005. In proposing a $5,000 forfeiture for GGP's unauthorized
operations, 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
operations).
11. Pursuant to the Forfeiture Policy Statement and Section 1.80 of the
Rules, the base forfeiture amount for failure to respond to a
Commission communication is $4,000. We find that GGP's willful and
repeated failure to respond to a Bureau order warrants a proposed
forfeiture. Misconduct of this type exhibits a disregard for the
Commission's authority that cannot be tolerated, and, more
importantly, threatens to compromise the Commission's ability to
adequately investigate violations of its rules. Accordingly, applying
the Forfeiture Policy Statement and statutory factors to the instant
case, we conclude that GGP is apparently liable for a forfeiture in
the amount of $4,000 for failing to respond to the Bureau's letters of
inquiry. Thus, we propose an aggregate forfeiture of $10,500 for GGP's
apparent willful and repeated violations of Section 301 of the Act and
Sections 1.903 and 1.949(a) of the Rules and GGP's apparent willful
and repeated failure to respond to a Bureau order.
12. As a Commission licensee, GGP is charged with the responsibility of
knowing and complying with the terms of its authorization, the Act and
the Rules, including the requirement to timely renew the authorization
for its PLMRS station. We do find, however, that a downward adjustment
of the proposed aggregate forfeiture from $10,500 to $9,200 is
warranted because GGP made voluntary disclosures to Commission staff
concerning its late-filed license renewal and unauthorized operation
and undertook corrective actions prior to any Commission inquiry or
initiation of enforcement action.
IV. ORDERING CLAUSES
13. 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, General Growth
Properties IS hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE
in the amount of $9,200 for willful and repeated violation of Section
301 of the Act and Sections 1.903 and 1.949(a) of the Rules and for
willful and repeated failure to respond to a Bureau order.
14. 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, General Growth Properties SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
1. 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. A request for full payment under an
installment plan should be sent to: Associate Managing
Director-Financial Operations, 445 12^th Street, S.W., Room 1-A625,
Washington, D.C. 20554.
2. 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.
15. 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.
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 to Mr. James P. Grace, III, General Growth Properties, Brass
Mill Center, 495 Union Street, Suite 139, Waterbury, CT 06706 and
Bernard John Bucksbaum, CEO and Director, General Growth Properties,
110 N. Wacker Drive, Chicago, IL 60606.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. SS 1.903 and 1.949(a).
File No. 0002571373.
File No. 0002604311.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to James P. Grace
III, General Growth Properties (September 27, 2006).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to James P. Grace
III, General Growth Properties (December 14, 2006).
In accordance with 47 C.F.R. S 1.5, the first and second LOIs were
directed to Mr. Grace because he was listed as the contact on GGP's most
recent application.
47 C.F.R. S 1.955(a)(1).
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002) (licensee is responsible for compliance
with all Commission rules).
47 U.S.C. S 4(i), 4(j) and 403.
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) (Commission assessed a $100,000 forfeiture against a carrier
for its willful refusal to supply a sworn declaration in response to a
Bureau letter of inquiry, stating: "[T]he order here was squarely within
the Commission's authority and, in any event, parties are required to
comply with Commission orders even if they believe them to be outside the
Commission's authority."); see also World Communications Satellite
Systems, Inc., Forfeiture Order, 19 FCC Rcd 2718 (Enf. Bur. 2004)
($10,000 forfeiture assessed for submitting a jurisdictional objection in
lieu of a response to a Bureau inquiry letter); In re Richard E.
LaPierre, Forfeiture Order, 15 FCC Rcd 23525 (Enf. Bur. 2000) ($4,000
forfeiture assessed for repeated failure to respond to written Commission
inquiries).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992); see also WCS
Communications, Inc., Notice of Apparent Liability for Forfeiture, 13 FCC
Rcd 6691 (WTB, Enf. and Consumer Info. Div., 1998) (finding that a
licensee's inadvertent failure to file timely renewal applications
constitutes a repeated violation that continues until the date the license
is renewed).
47 U.S.C. S 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), 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, 19 FCC Rcd 7433, 7438 (2004) ("Discussion Radio")
(proposing forfeitures of $5,000 and $1,500 against a broadcaster who both
operated its station for 14 months without Commission authority and failed
to timely file its renewal application).
See Discussion Radio,19 FCC Rcd at 7438 (proposing a $1,500 forfeiture for
failure to file a timely renewal application for a broadcast station); see
also Lazer Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur., Spectrum Enf. Div., 2006);
Criswell College, Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
5106, 5109 (Enf. Bur., Spectrum Enf. Div., 2006); National Weather
Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
3922, 3925 (Enf. Bur., Spectrum Enf. Div., 2006) ("NWN"); Journal
Broadcast Corporation, Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd 18211, 18213 (Enf. Bur., Spectrum Enf. Div., 2005) ("Journal
Broadcast"); Shared Data Networks, LLC, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div., 2005)
("Shared Data").
Under Section 503(b)(6) of the Act, 47 U.S.C. S 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a NAL. Section 503(b)(6), however, does
not bar us from considering GGP's prior conduct in determining the
appropriate forfeiture amount for violations that occurred within the
one-year statutory period. See Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Liability for Forfeiture, 18 FCC Rcd 19893,
19903 (2003), forfeiture ordered, Forfeiture Order, 21 FCC Rcd 4710
(2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671 (2000); Cate Communications Corp., Memorandum Opinion and
Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., 10 FCC 2d
37, 37-38 (1967), recon. denied, Memorandum Opinion and Order, 11 FCC 2d
193 (1967). Accordingly, while we take into account the continuous nature
of the violations in determining the appropriate forfeiture amount, our
proposed forfeiture relates only to GGP's apparent violations that have
occurred within the past year.
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); see also Criswell College, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd
at 3925; Journal Broadcast, 20 FCC Rcd at 18213; Shared Data, 20 FCC Rcd
at 18187.
Forfeiture Policy Statement, 12 FCC Rcd 17087.
47 C.F.R. S 1.80.
See Shenzhen Ruidian Communication Co. Ltd., Forfeiture Order, 21 FCC Rcd
2177 (Enf. Bur., Spectrum Enf. Div., 2006) (assessing a $4,000 forfeiture
for willfully and repeatedly failing to respond to a directive of the
Bureau to provide certain information and documents).
See Discussion Radio, 19 FCC Rcd at 7437 (licensee duty to timely seek
renewal of its license to maintain operating authority); see also
Criswell College, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd at 3926; Journal
Broadcast, 20 FCC Rcd at 18214; Shared Data, 20 FCC Rcd at 18187.
See Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur. 2004) (forfeiture reduced for voluntarily disclosure
and initiating corrective action prior to Commission inspection); see also
Criswell College, 21 FCC Rcd at 5109; NWN, 21 FCC Rcd at 3926; Journal
Broadcast, 20 FCC Rcd at 18214; Shared Data, 20 FCC Rcd at 18187.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1548
6
Federal Communications Commission DA 07-1548