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Emigrant Storage, LLC

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Released: April 1, 2014

Federal Communications Commission

DA 14-440

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
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Emigrant Storage LLC
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File No.: EB-SED-13-000088851
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NAL/Acct. No.: 201232100034
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FRN: 0021058938

FORFEITURE ORDER

Adopted: April 1, 2014

Released: April 1, 2014

By the Acting Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
We impose a penalty of $20,000 against Emigrant Storage LLC (Emigrant), former
licensee of Private Land Mobile Radio Service (PLMRS) station WPKM212, Reno, Nevada, for
operating the station without authority for more than nine years and for failing to file a timely application
to renew the station’s license. We take this action as part of our duty to prevent unlicensed radio
operations from dangerously interfering with authorized radio communications (potentially including
emergency communications between first responders, such as public safety, law enforcement, emergency
medical, and emergency response personnel) in the United States. In this case, by continuing to operate
the station even after the station’s license had expired, Emigrant actually caused interference to an
authorized user of the spectrum. Emigrant does not deny the violations, but nonetheless urges that the
proposed $20,000 forfeiture should be cancelled or reduced. We decline to do so.

II.

BACKGROUND

2.
On July 31, 2012, the Enforcement Bureau (Bureau) released a Notice of Apparent
Liability for Forfeiture2 proposing a $20,000 forfeiture against Emigrant for its apparent willful and
repeated violations of Section 301 of the Act and of Sections 1.903(a) and 1.949(a) of the Rules3 by

1 The investigation was initiated under File No. EB-11-SE-102 and subsequently assigned File No. EB-SED-13-
00008885. Any future correspondence with the FCC concerning this matter should reflect the new case number.
2 Emigrant Storage LLC, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 8917 (Enf. Bur. 2012) (NAL).
The NAL includes a more complete recitation of the facts and history of this case and is incorporated herein by
reference.
3 47 U.S.C. § 301; 47 C.F.R. §§ 1.903(a), 1.949(a). See also Biennial Regulatory Review – Amendment of Parts 0,
1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission’s Rules to Facilitate the Development and Use
of the Universal Licensing System in the Wireless Telecommunications Services
, Report and Order, 13 FCC Rcd
21027, 21071, para. 96 (1998) (Universal Licensing System Report and Order) (adopting, inter alia, Section 1.949
of the Rules); Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 11476, 11485–86, para. 22
(1999) (Universal Licensing System MO&O) (collectively, Universal Licensing System Orders).

Federal Communications Commission

DA 14-440

operating station WPKM212 without Commission authority for more than nine years and for failing to
seek timely renewal of the station’s license.4
3.
On August 27, 2012, Emigrant responded to the NAL and sought to reduce or cancel the
proposed forfeiture.5 In its NAL Response, Emigrant does not dispute that it operated station WPKM212
without Commission authority for over nine years or that it failed to seek timely renewal of the station’s
license. Emigrant argues, however, that its violations were minor because the unauthorized operation did
not involve “a large manufacturing facility over a wide area with numerous devices,” and that the
company acted immediately and in good faith to remedy the violations when brought to its attention.6
Emigrant also contends that a $20,000 forfeiture is “excessive” in light of the financial impact it would
have on Emigrant and its owners, and when compared to the $25,000 forfeiture assessed in BASF.7

III.

DISCUSSION

4.
The Bureau assessed the proposed forfeiture in accordance with Section 503(b) of the
Act,8 Section 1.80 of the Rules,9 and the Commission’s Forfeiture Policy Statement.10 In examining
Emigrant’s NAL Response, we “take into account 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.”11 As discussed below, we reject Emigrant’s
arguments for reduction or cancellation of the proposed forfeiture; we affirm our conclusion in the NAL
that Emigrant willfully12 and repeatedly13 violated Section 301 of the Act and Section 1.903(a) of the
Rules by operating station WPKM212 without Commission authority for more than nine years and also
violated Section 1.949(a) of the Rules by failing to file a timely license renewal application for the
station.

4 See NAL, 27 FCC Rcd at 8918–21, paras. 5–9.
5 See Emigrant Storage LLC, Response to Apparent Liability for Forfeiture and Request for Cancellation or
Reduction (Aug. 27, 2012) (on file in EB-SED-13-00008885) (NAL Response).
6 Id. at 1.
7 See id. at 1–2 (citing BASF Corp., Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17300 (Enf. Bur. 2010)
($25,000 forfeiture assessed for five years of apparent unauthorized operation and failure to seek timely renewal of
station license) (BASF) (forfeiture paid)).
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 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, 17113 (1997) (Forfeiture Policy Statement), recons.
denied
, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
11 47 U.S.C. § 503(b)(2)(E).
12 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. 47 U.S.C. § 312(f)(1). The legislative history of Section 312
clarifies that this definition of willful applies to Sections 312 and 503 of the Act, H.R. Rep. No. 97-765 (1982)
(Conf. Rep.), and the Commission has so interpreted the term in the Section 503(b) context. See So. Cal. Broad.
Co.
, Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387–88, para. 5 (1991), recons. denied, 7 FCC Rcd 3454
(1992).
13 Section 312(f)(2) of the Act, which also applies to forfeitures assessed pursuant to Section 503(b) of the Act,
defines “repeated” as “the commission or omission of [any] act more than once or, if such commission or omission
is continuous, for more than one day.” 47 U.S.C. § 312(f)(2); see Callais Cablevision, Inc., Notice of Apparent
Liability for Monetary Forfeiture, 16 FCC 1359, 1362, para. 9 (2001).
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Federal Communications Commission

DA 14-440

5.
Section 301 of the Act and Section 1.903(a) of the Rules prohibit the use or operation of
any apparatus for the transmission of energy or communications or signals by radio except under, and in
accordance with, a Commission authorization.14 Additionally, under Section 1.949(a) of the Rules, a
licensee must file an application for renewal of any station license it intends to continue to operate “no
later than the expiration date of the authorization for which renewal is sought and no sooner than 90 days
prior to expiration.”15 Absent a timely filed renewal application, a wireless license automatically
terminates on the license expiration date.16
6.
As previously noted, Emigrant does not dispute that it operated station WPKM212
without Commission authority or that it failed to timely file for continued operating authority. Emigrant
argues, however, that the proposed forfeiture should be cancelled or reduced because the violations were
minor in light of the size of its operations and because it acted in good faith to resolve the violations when
brought to its attention.17 We disagree. Under Section 301 of the Act and Section 1.903(a) of the Rules,
Emigrant was required to obtain Commission authorization to operate its station irrespective of operation
size, purpose, or number of devices in use.18 Indeed, this threshold requirement furthers the
Commission’s goal of “protect[ing] the public and licensees providing service to the public from
interference caused by other authorized or unauthorized users of spectrum.” 19 As the record reflects,
Emigrant’s unauthorized operation compromised this goal by causing harmful interference to another
wireless operator.20 In addition, Emigrant’s unauthorized operation continued for over nine years—
almost twice as long as the station’s initial license term. Taken together, these facts do not constitute a
minor violation. Moreover, while Emigrant took prompt action to come into compliance with the Rules
before the Commission initiated the present investigation (and which the Bureau acknowledged when it
reduced the proposed forfeiture in the NAL21), the significant duration of the unauthorized operation and

14 47 U.S.C. § 301; 47 C.F.R. § 1.903(a).
15 47 C.F.R. § 1.949(a). Licensees who want to operate their stations after the expiration of their station licenses
must affirmatively request continued operating authority from the Commission. In its Universal Licensing System
Orders
, the Commission mandates the filing of certain applications to obtain such authority. If a licensee intending
continued operations fails to file a timely renewal application, the Commission requires such licensee to seek
temporary or new operating authority. See Universal Licensing System Report and Order, 13 FCC Rcd at 21071,
para. 98 (directing licensees that fail to file timely renewal applications to submit a new application or, if necessary,
a request for special temporary operating authority); Universal Licensing System MO&O, 14 FCC Rcd at 11485–86,
para. 22 (permitting, in the alternative, the acceptance and processing of late filed renewal applications under certain
circumstances). In the Universal Licensing System MO&O, the Commission expressly held that it could “initiate
enforcement action against the licensee for untimely filing and unauthorized operation between the expiration of the
license and the late renewal filing, including, if appropriate, the imposition of fines or forfeitures for these rule
violations.” Id.
16 See 47 C.F.R. § 1.955(a)(1).
17 See NAL Response at 1. Emigrant acknowledged that its earlier arguments of inadvertence and changes in
personnel were not sufficient reasons to cancel or reduce the forfeiture. See id.
18 See 47 U.S.C. § 301; 47 C.F.R. § 1.903(a).
19 Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets,
Notice of Proposed Rulemaking, 15 FCC Rcd 24203, 24217, para. 35 (2000).
20 As discussed in the NAL, Emigrant became aware of its unauthorized operation when another wireless operator
called to complain of interference. See NAL, 27 FCC Rcd at 8918, para. 4.
21 See id. at 8920–21, para. 9 (recognizing Emigrant’s “non-dilatory actions” taken to “come into compliance”
before “the Bureau’s investigation and the initiation of enforcement action”).
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DA 14-440

other facts and circumstances of this case do not justify cancelling or further reducing the proposed
forfeiture.
7.
In addition, Emigrant argues that the $20,000 forfeiture is “excessive” in light of the
financial impact it would have on Emigrant and its owners, and also when compared to the $25,000
forfeiture assessed in BASF, which involved a “multi-national corporation and operation of a station at a
large facility.”22 As a threshold matter, the financial records Emigrant provided with its NAL Response
do not support a downward adjustment or cancellation for inability to pay. Although Emigrant did not
expressly state that it could not pay the forfeiture, it provided financial records to argue that the forfeiture
was “excessive” and a “significant punitive penalty” when compared to Emigrant’s gross revenues and
overall size.23 In general, an entity’s “gross revenues are the best indicator of its ability to pay a
forfeiture.”24 Having examined the financial records provided by Emigrant, we find that a $20,000
forfeiture expressed as a percentage of Emigrant’s gross revenues is payable,25 and as such, decline to
cancel or reduce the forfeiture on this basis.
8.
Moreover, we are unpersuaded by Emigrant’s argument that the forfeiture is excessive
when compared to the forfeiture assessed in BASF.26 Specifically, Emigrant argues that BASF “was a
virtually identical factual situation; however, it involved a multimillion dollar multi-national corporation
and operation of a station at a large facility,” but resulted in a forfeiture that was only $5,000 more than
the forfeiture proposed here.27 In making that comparison, Emigrant fails to note the significant
difference in the length of the unauthorized operation. In assessing the $25,000 forfeiture in BASF, the
Bureau stressed the five years of unauthorized operation as well as the company’s status as a profitable
enterprise.28 In the instant case, the Bureau carefully considered the nine-year duration of Emigrant’s
misconduct (nearly twice the length of the initial license term) in the NAL when proposing a forfeiture
amount.29 Thus, we also decline to cancel or reduce the forfeiture on this basis.30

22 NAL Response at 2.
23 See id. at 1–2.
24 PJB Commc’ns of Va., Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088, 2089, para. 8 (1992).
25 See id. (forfeiture not deemed excessive where it represented approximately 2.02 percent of the violator’s gross
revenues); Coleman Enters., Inc., Order of Reconsideration, 16 FCC Rcd 10023, 10025, para. 6 (2001) (forfeiture
not deemed excessive where it represented approximately 7.9 percent of the violator’s gross revenues); Hoosier
Broad. Corp.
, Memorandum Opinion and Order, 15 FCC Rcd 8640, 8641, para. 7 (Enf. Bur. 2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the violator’s gross revenues).
26 See supra note 7.
27 See NAL Response at 2.
28 See BASF, 25 FCC Rcd at 17303–04, para. 11.
29 It is well established that the Commission considers duration of the violation a critical factor in determining the
amount of a forfeiture in order to avoid creating perverse incentives, to encourage licensees to monitor their
license expiration dates, and to ensure that licensees timely seek operating authority. See NAL, 27 FCC Rcd at
8920, para. 9 n.26 (noting line of cases where the Commission “upwardly adjusted the base forfeiture . . .
[because] the unauthorized operation continued for an extended period of time”); see also Remel, Inc. & Its
Corporate Parent Thermo Fisher Scientific, Inc.
, Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 8778,
8781, para. 8 n.28 (2013) (same) (forfeiture paid).
30 The Commission has broad discretion to determine the appropriate forfeiture depending on the circumstances of
each case and is not bound by the forfeitures imposed in different cases. See, e.g., Cont’l Broad. Inc. v. FCC, 439
(continued . . . )
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Federal Communications Commission

DA 14-440

9.
In sum, after full consideration of Emigrant’s NAL Response, the record before us, and
the applicable statutory factors, we affirm our conclusion in the NAL that Emigrant willfully and
repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules31 by operating station
WPKM212 without authorization and also violated Section 1.949(a) of the Rules32 by failing to file a
timely license renewal application for the station. Further, because Emigrant failed to provide a sufficient
basis for cancellation or reduction of the forfeiture, we also affirm the proposed $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,33 Emigrant
Storage LLC

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of twenty thousand
dollars ($20,000) for willful and repeated violations of Section 301 of the Communications Act of 1934,
as amended, and Sections 1.903(a) and 1.949(a) of the Commission’s rules.34
11.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Commission’s rules within thirty (30) calendar days after the release date of this Forfeiture Order.35 If the
forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of
Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Communications Act of 1934,
as amended.36 Emigrant Storage LLC shall send electronic notification of payment to Jason Koslofsky at
Jason.Koslofsky@fcc.gov, Daudeline Meme at Daudeline.Meme@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made.
12.
The payment must be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account Number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be submitted.37 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 Emigrant Storage
LLC should follow based on the form of payment it selects:

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.
(continued from previous page . . . )
F.2d 580, 583 (D.C. Cir. 1971) (noting that “the choice of remedies and sanctions is a matter wherein the
Commission has broad discretion”) (internal citation omitted).
31 47 U.S.C. § 301; 47 C.F.R. § 1.903(a).
32 47 C.F.R. § 1.949(a).
33 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.
34 47 U.S.C. § 301; 47 C.F.R. §§ 1.903(a), 1.949(a).
35 47 C.F.R. § 1.80.
36 47 U.S.C. § 504(a).
37 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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DA 14-440


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.
13.
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, DC 20554.38 If Emigrant Storage, LLC has questions regarding
payment procedures, it should contact the Financial Operations Group Help Desk by phone, 1-877-480-
3201, or by e-mail, ARINQUIRIES@fcc.gov.
14.

IT IS FURTHER ORDERED

that a copy of this Forfeiture Order shall be sent by
Certified Mail, Return Receipt Requested, to William A. Manke, Sr. and Lavon T. Manke, Owners,
Emigrant Storage LLC, 2500 Longley Lane, Reno, NV 89502; and to James M. Walsh, Walsh, Baker &
Rosevear, P.C., counsel to Emigrant Storage LLC, 9468 Double R Boulevard, Suite A, Reno, NV 89521.
FEDERAL COMMUNICATIONS COMMISSION
Travis LeBlanc
Acting Chief
Enforcement Bureau

38 See 47 C.F.R. § 1.1914.
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