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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Shimmick Construction Company, Inc./ )
Obayashi Corporation, Joint Venture ) File Number EB-09-LA-0068
Licensees of Stations WQER756, ) NAL/Acct. No.200932900007
WQEN793,
) FRN - 0019140391
WQJI360 & WQKG818
)
Yorba Linda, CA
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September, 28, 2009
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 Shimmick Construction Company Inc./Obayashi Corporation, Joint
Venture, ("Shimmick-Obayashi"), in Yorba Linda, California, licensees
of stations WQER756, WQEN793, WQJI360 and WQKG818, apparently
repeatedly violated Section 1.903(a) of the Commission's Rules
("Rules") by failing to operate only in accordance with the rules
applicable to their particular service as set forth in the
Commission's Rules and with a valid authorization granted by the
Commission. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Shimmick-Obayashi
is apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On May 18, 2009, and May 21, 2009, the Enforcement Bureau's Los
Angeles Office received complaints that a concrete delivery company
was operating numerous mobile stations in Yorba Linda, California, on
146.025 MHz which is a frequency allocated exclusively to the Amateur
Radio Service.
3. On May 26, 2009, and agent from the Los Angeles Office, using radio
direction finding techniques, located transmissions on 146.025 MHz to
the construction site of the Robert B. Diemer Water Treatment plant at
3972 Valley View Blvd., in Yorba Linda California. The transmissions
were not identified by callsign. The transmissions monitored by the
Los Angeles agent related to mixing and delivery of concrete on the
construction site. The Los Angeles agent then viewed the construction
site and correlated the movement of concrete trucks with associated
radio transmissions on 146.025 MHz.
4. On May 27, 2009, the Los Angeles agent again used radio direction
finding techniques to positively locate the source of transmissions on
146.025 MHz, to the Robert B. Diemer Water Treatment Plant. The Los
Angeles agent visited the construction site and spoke to the
Shimmick-Obayashi supervisor of the on-site concrete plant who allowed
the Los Angeles agent to inspect several of the handheld radios in use
at the site. The Los Angeles agent confirmed that the frequency
146.025 MHz was programmed into frequency selector position #5 on
numerous Motorola model CP200 portable transceivers that were being
used to coordinate construction operations throughout the site. The
Shimmick-Obayashi construction supervisor told the Los Angeles agent
that he did not know anything about a license for the radios, but that
he would immediately stop using the Amateur Radio Service frequency
programmed in position #5 on the Motorola CP200 transceivers.
5. On May 28, 2009, the Los Angeles agent researched the Commission's
records and determined that the two companies which had formed the
joint venture Shimmick-Obayashi; Shimmick Construction Inc., and
Qbayashi Corporation, were both Commission licensees. Shimmick
Construction, Inc., holds Industrial Radio Service licenses WQJI360
and WQKG818 which authorize operations nationwide, including in Yorba
Linda, California, but neither of these licenses authorize use of
146.025 MHz. Obayashi Corporation holds Industrial Radio Service
licenses WQER756 and WQEN793, but neither of these licenses authorizes
use of 146.025 MHz. The research also revealed that the
Shimmick-Obayashi joint venture, as an entity, did not hold any
Commission licenses.
III. DISCUSSION
6. 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.
7. 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. On May 26 and 27, 2009, a Los
Angeles agent located transmissions from Shimmick-Obayashi on 146.025
MHz emanating from mobile users at a construction site in Yorba Linda,
California. At the time of the investigation, neither
Shimmick-Obayashi nor the individual companies which made up the joint
venture were authorized to operate on 146.025 MHz. The violation
occurred for more than one day, therefore, it was repeated.
8. Based on the evidence before us, we find that Shimmick-Obayashi
apparently repeatedly violated Section 1.903(a) of the Rules by
failing to operate in accordance with the rules applicable to their
particular service as set forth in the Commission's Rules and with a
valid authorization granted by the Commission.
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 use of 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)(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, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Shimmick-Obayashi is apparently liable for a
$4,000 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,
0.314 and 1.80 of the Commission's Rules, Shimmick Construction
Company, Inc./Obayashi Corporation, Joint Venture 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
Rules.
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, Shimmick Construction
Company, Inc./Obayashi Corporation, Joint Venture 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Shimmick Construction Company
Inc./Obayashi Corporation, Joint Venture will also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd. Suite 660, Cerritos, CA, 90703 and must include
the NAL/Acct. No. referenced in the caption. An electronic copy shall
be sent to WR-Response@fcc.gov.
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. 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 Shimmick Construction Company
Inc./Obayashi Corporation, Joint Venture.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director,
Los Angeles District Office
Western Region
Enforcement Bureau
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 2.106.
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.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission