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$17K NAL to Acumen for Unauthorized Operation and Harmful Interference

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Released: December 11, 2013

Federal Communications Commission

DA 13-2305

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Acumen Communications
)
File No.: EB-FIELDWR-13-00006185
)
NAL/Acct. No.: 201432900001
Licensee of Station WQJF635,
)
FRN: 0016049017
Los Angeles, CA
)

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: December 11, 2013

Released: December 11, 2013

By the District Director, Los Angeles Office, Western Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that Acumen
Communications (Acumen), licensee of Station WQJF635 in Los Angeles, California, apparently willfully
and repeatedly violated Section 301 of the Communications Act of 1934, as amended (Act),1 and Sections
1.903(a) and 90.403(e) of the Commission’s rules (Rules),2 by operating Station WQJF635 on a frequency
not authorized on its license, and by failing to take reasonable precautions to avoid causing harmful
interference. We conclude that Acumen is apparently liable for a forfeiture in the amount of seventeen
thousand dollars ($17,000). In addition, we direct Acumen to submit, no later than thirty (30) calendar days
from the date of this NAL, a statement, signed under penalty of perjury, confirming compliance with the
Act, the Rules, and its license.

II.

BACKGROUND

2.
On January 17, 2013, in response to a complaint from the United States Coast Guard
(USCG) concerning interference to their operations in the Los Angeles, California area in the 150 MHz
VHF band, an agent from the Enforcement Bureau’s Los Angeles Office (Los Angeles Office), using radio
direction-finding methods, determined that the continuous signal that was causing interference to the USCG
was coming from the Mount Wilson communications site in Los Angeles, California. The next day, Los
Angeles agents further determined that the specific source of the ongoing interference was coming from the
Acumen Communications building located at 123 CBS Lane on Mount Wilson. Specifically, the agents
located the interfering signal, transmitting on 150.6973 MHz, to the Acumen transmitter and equipment
rack, which was labeled as frequency 151.580 MHz.
3.
After being contacted by phone by Los Angeles Office management, Acumen personnel
contacted the Los Angeles agents at the Acumen transmitter site. The agents explained to the Acumen
personnel their findings regarding the source of the interference to USCG communications. The Acumen
personnel then turned off the offending transmitter remotely and the interference to the USCG ceased.
When queried by the agents, Acumen stated that the radio station in question was operating pursuant to
the Station WQJF635 authorization. According to the Station WQJF635 authorization in effect at the
time of the investigation, the only VHF frequencies it was authorized to operate on, from any location,


1 47 U.S.C. § 301.
2 47 C.F.R. §§ 1.903(a), 90.403(e).

Federal Communications Commission

DA 13-2305

were VHF frequencies 152.285 MHz and 157.545 MHz; the authorization did not include operation on
frequency 151.580 MHz.3
4.
On January 30, 2013, the Los Angeles Office issued Acumen a Notice of Violation (NOV)
for failing to operate Station WQJF635 in accordance with its authorization, and for failing to take
reasonable precautions to avoid causing interference to licensed services, by operating Station WQJF635 on
frequency 151.580 MHz and generating a spurious emission on frequency 150.6973 MHz.4 In its NOV
Response, Acumen did not deny that the Station was generating the spurious signal on 150.6973, but stated
that the transmitter was operating “on frequency 152.285 [MHz] and . . . that the transmitter was
transmitting a spurious signal about .8 [MHz] both sides of the designated [frequency] across the band and
. . . [it was] moving all over. (Completely unstable).” 5

III.

DISCUSSION

5.
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.6 Section 312(f)(1) of the Act defines “willful” as the
“conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.7
The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,8 and the Commission has so interpreted the term in the Section 503(b)
context.9 The Commission may also assess a forfeiture for violations that are merely repeated, and not
willful.10 The term “repeated” means the commission or omission of such act more than once or for more
than one day.11


3 See Station WQJF635 Authorization, effective May 4, 2012.
4 See Acumen Communications, Notice of Violation, V201332900008 (Jan. 30, 2013).
5 See Response to Notice of Violation of Acumen Communications at 1 (Mar. 6, 2013) (on file in EB-FIELDWR-
13-00006185) (NOV Response).
6 47 U.S.C. § 503(b).
7 47 U.S.C. § 312(f)(1).
8 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in Section 312] defines the terms
‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., Section 503)
. . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless of
whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous, for
more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with
the Commission’s application of those terms . . . .”).
9 See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991),
recons. denied, 7 FCC Rcd 3454 (1992).
10 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s
repeated signal leakage).
11 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.” See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
2

Federal Communications Commission

DA 13-2305

A.

Operation on Unauthorized Frequency

6.
The evidence in this case is sufficient to establish that Acumen violated Section 301 of the
Act and Section 1.903(a) of the Rules. Section 301 of the Act prohibits the use or operation of any
apparatus for the transmission of energy or communications or signals by radio, except under and in
accordance with the Act and with a license granted under the provisions of the Act.12 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.13 On January 17 and 18, 2013, Los Angeles agents observed that Acumen was
operating radio equipment that was transmitting a continous signal that was creating a spurious emission,
causing interference to USCG communications. Although Acumen states in its NOV Response that the
malfunctioning transmitter was operating on its assigned frequency (i.e., 152.285 MHz),14 the direct
evidence obtained during the investigation by the Los Angeles agents (which included screen captures of
spectrum analyzer measurements and frequency labels on the equipment) shows otherwise. Specifically,
the agents confirmed that the fundamental frequency in use was frequency 151.580 MHz, a frequency not
authorized by the Station WQJF635 license; and that a spurious signal causing interference to USCG
operations in the 150 MHz band was observed on frequency 150.6973 MHz, a frequency approximately
0.8 MHz below the center frequency of 151.580 MHz, which is within the range of the spurious signal.
Indeed, in its NOV Response, Acumen did not dispute that it was the cause of the interfering spurious
signal, and it also acknowledged that the spurious signal was approximately 0.8 MHz on both sides of the
fundamental frequency.15 Based on the evidence before us, we find that Acumen apparently willfully and
repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules by operating Station WQJF635
on a frequency not authorized by its license.

B.

Failing to Take Reasonable Precautions to Avoid Interference

7.
The evidence in this case is sufficient to establish that Acumen also violated Section
90.403(e) of the Rules. Section 90.403(e) of the Rules requires that “[l]icensees shall take reasonable
precautions to avoid causing harmful interference. This includes monitoring the transmitting frequency
for communications in progress and such other measures as may be necessary to minimize the potential
for causing interference.”16 On January 17 and 18, 2013, Los Angeles Office agents observed that
Acumen was operating radio equipment that was transmitting a continous signal, creating a spurious
emission, and causing harmful interference to USCG communications. In its NOV Response, Acumen
did not dispute it was the cause of the interference and proffered no evidence that it was making any
effort to monitor its operations or take any other reasonable precautions to avoid causing interference.
The result of Acumen’s failures was constant interference to USCG communications. Based on the
evidence before us, we find that Acumen apparently willfully and repeatedly violated Section 90.403(e) of
the Rules by failing to take reasonable precautions to avoid causing harmful interference.17


12 47 U.S.C. § 301.
13 47 C.F.R. § 1.903(a).
14 NOV Response at 1.
15 Id.
16 47 C.F.R. § 90.403(e).
17 See, e.g., Portland Taxicab Company, Forfeiture Order, 19 FCC Rcd 22511 (Enf. Bur. 2004) (assessing a $4,000
forfeiture to a land mobile licensee for operating on unauthorized frequencies in violation of Section 1.903(a) of the
Rules; a $7,000 forfeiture for transmitting spurious emissions resulting in harmful interference in violation of
Section 90.403(e) of the Rules; and a $1,000 forfeiture for failing to indentify in violation of Section 90.425(a) of
the Rules), aff’d, Memorandum Opinion and Order, 22 FCC Rcd 1059 (Enf. Bur. 2007).
3

Federal Communications Commission

DA 13-2305

C.

Proposed Forfeiture and Reporting Requirement

8.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for operation on an unauthorized frequency, or unauthorized emissions, is
$4,000; and the base forfeiture amount for interference is $7,000.18 In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Act,
which include the nature, circumstances, extent, and gravity of the violations, 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.19 In doing so, we find that the violations here warrant a proposed forfeiture above the
base amounts. As the record reflects, Acumen’s unauthorized operation produced a spurious signal, which
caused constant harmful interference to USCG communications; and which Acumen was unaware of until
contacted by the Los Angeles Office. Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Acumen is apparently liable for a total
forfeiture in the amount of seventeen thousand dollars ($17,000).
9.
We further order Acumen to submit a written statement, pursuant to Section 1.16 of the
Rules, signed under penalty of perjury by an officer or director of Acumen, stating that it is operating
Station WQJF635 in compliance with Section 301 of the Act,20 and with Sections 1.903(a) and 90.403(e) of
the Rules.21 Acumen should also provide details of the specific actions it has taken to come into
compliance. This statement must be provided to the Los Angeles Office at the address listed in paragraph
12, below, within thirty (30) calendar days of the release date of this NAL.

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, 0.204, 0.311, 0.314, and 1.80 of the Commission’s rules,
Acumen Communications is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of seventeen thousand dollars ($17,000) for violation of Section 301 of the
Act, and Sections 1.903(a) and 90.403(e) of the Rules.22
11.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and
Order, Acumen Communications

SHALL PAY

the full amount of the proposed forfeiture or

SHALL
FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
12.

IT IS FURTHER ORDERED

that Acumen Communications

SHALL SUBMIT

a
written statement, as described in paragraph 9, above, within thirty (30) calendar days of the release date
of this Notice of Apparent Liability for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Los Angeles District Office, 18000
Studebaker Rd., Suite 660, Cerritos, CA 90703. Acumen Communications shall also e-mail the written
statement to WR-Response@fcc.gov.


18 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 (1997) (Forfeiture Policy Statement), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
19 47 U.S.C. § 503(b)(2)(E).
20 47 U.S.C. § 301.
21 47 C.F.R. § 1.903(a).
22 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 1.903(a), 90.403(e).
4

Federal Communications Commission

DA 13-2305

13.
Payment of the forfeiture must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account Number and FRN referenced above. Acumen
Communications shall send electronic notification of payment to WR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice)
must be submitted.23 When completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below
are additional instructions you should follow based on the form of payment you select:
·
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000,
or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101.
·
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at
(314) 418-4232 on the same business day the wire transfer is initiated.
·
Payment by credit card must be made by providing the required credit card information on FCC
Form 159 and signing and dating the Form 159 to authorize the credit card payment. The
completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
14.
Any request for making full payment over time under an installment plan should be sent
to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554.24 If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
15.
The written statement seeking reduction or cancellation of the proposed forfeiture, if any,
must include a detailed factual statement supported by appropriate documentation and affidavits pursuant
to Sections 1.16 and 1.80(f)(3) of the Rules.25 Mail the written statement to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office, 18000 Studebaker Rd., Suite 660,
Cerritos, CA 90703, and include the NAL/Acct. No. referenced in the caption. Acumen Communications
also shall e-mail the written response to WR-Response@fcc.gov.
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 principles (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.


23 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
24 See 47 C.F.R. § 1.1914.
25 47 C.F.R. §§ 1.16, 1.80(f)(3).
5

Federal Communications Commission

DA 13-2305

17.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture and Order shall be sent by both Certified Mail, Return Receipt Requested, and First Class Mail to
Acumen Communications, at 10670 S. La Cienega Blvd., Suite C, Inglewood, CA 90304.
FEDERAL COMMUNICATIONS COMMISSION
Charles A. Cooper
District Director
Los Angeles Office
Western Region
Enforcement Bureau
6

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