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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-06-LA-171
Federal Express Corporation
) NAL/Acct. No. 200632900013
Licensee of Station WQAS435
) FRN: 0010662195
Bloomington, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 17, 2006
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Federal Express Corporation ("Fed Ex"), licensee of land mobile
station WQAS435, apparently willfully and repeatedly violated Section
1.903(a) of the Commission's Rules ("Rules") by operating on 460.250
MHz, a frequency not authorized by its license, WQAS435. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Fed Ex is apparently liable for a forfeiture in
the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On June 15, 2006, the Enforcement Bureau's Los Angeles Office received
an interference complaint from the City of Riverside, California,
Police Department, who reported that they had been receiving
co-channel interference to their radio system licensed to operate on
460.250 MHz during early morning tactical operations for several
weeks. Riverside Police also reported that they had previously used
their own direction finding equipment and located the interference to
the Fed Ex package distribution facility in nearby Bloomington,
California. After locating the interference, Riverside Police
Department personnel stated that they immediately contacted Fed Ex
personnel, who agreed to stop operating and correct the problem.
Several days later, however, the Riverside Police again noticed the
interference on 460.250 MHz. The Riverside Police then contacted the
FCC Enforcement Bureau's Los Angeles Office. A review of the
Commission's records by the Los Angeles Office revealed that the Fed
Ex license, WQAS435, did not include authorization for Fed Ex to
operate on 460.250 MHz.
3. On June 23, 2006, during early morning hours, an agent from the Los
Angeles Office used mobile direction finding techniques to locate
radio operations from multiple portable transmitters operating on
460.250 MHz from within the Fed Ex facility in Bloomington. The
communications were not identified by any call sign. After locating
the stations, the Los Angeles agent interviewed Fed Ex personnel and
managers. Fed Ex's Assistant Hub Manager recalled that after receiving
the interference complaint from Riverside Police, he reported the
problem to Fed Ex's radio service company. No follow-up apparently
occurred between Fed Ex and the radio service company between June 15,
2006 and June 23, 2006. The Los Angeles agent measured the frequencies
of several other radio channels programmed into the portable radios in
use at the Fed Ex facility and discovered that, in addition to 460.250
MHz, four other channels were installed which were not authorized by
the WQAS435 license. The Los Angeles agent informed Fed Ex's Local
City Manager that the current license did not authorize the use of the
460.250 MHz, and the other four frequencies programmed into the
radios. The Fed Ex Local City Manager stated that he would immediately
stop using 460.250 MHz, and check to make sure all frequencies used in
the future were authorized.
III. DISCUSSION
4. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service, and with a valid
authorization granted by the Commission. The Fed Ex land mobile
license, WQAS435, does not include an authorization to operate on
460.250 MHz in the Riverside, California area. On June 15, 2006,
Riverside Police reported to the Los Angeles Office that they were
continuing to experience co-channel interference to their operations
on 460.250 MHz. Riverside Police further reported that they had
previously located the interference to Fed Ex's operations in
Bloomington, California, had contacted Fed Ex about the interference,
and had been assured by Fed Ex personnel that they would cease
operations on 460.250 MHz and that the interference would be resolved.
On June 23, 2006, a Los Angeles agent determined that Fed Ex was
operating its land mobile station, WQAS435, on 460.250 MHz, a
frequency not authorized by its license. Fed Ex personnel interviewed
by the Los Angeles agent acknowledged continued operation on the
unauthorized frequency, even after being contacted by Riverside Police
about the interference, therefore the violation was willful. Fed Ex's
violation occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find Fed Ex apparently willfully
and repeatedly violated Section 1.903(a) of the Rules by operating its
land mobile station, WQAS435, on 460.250 MHz, a frequency not
authorized by its license.
6. 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 using an unauthorized frequency is $4,000.
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. When informed of the unauthorized
frequency operation by the Los Angeles agent, the Fed Ex manager
immediately terminated the operations. The Commission has stated in
the past that a licensee is expected to correct violations when they
are brought to the licensee's attention and that such correction is
not grounds for a downward adjustment in the forfeiture. Additionally,
a licensee is required to operate on the frequency stated in its
authorization. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that Fed Ex
is apparently liable for a forfeiture of $4,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Commission's Rules, Federal Express Corporation
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
1.903(a) of the Act.
8. 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, Federal Express
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. 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.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA 90803, and must
include the NAL/Acct. No. referenced in the caption.
11. 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.
12. 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.
13. 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 Federal Express Corporation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S 1.903(a).
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission