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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number EB-08-PA-037
Bear Creek Mountain Resort ) NAL/Acct.No. 200832400006
Macungie, Pennsylvania ) FRN 0017-47-0907
)
)
FORFEITURE ORDER
Adopted: June 22, 2009 Released: June 24, 2009
By the Regional Director, Northeast Region, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand dollars ($5,000) to Bear Creek Mountain
Resort ("Bear Creek") for willfully and repeatedly violating Section
301 of the Communications Act of 1934, as amended ("Act"), by
operating radio transmitting equipment on the frequency 462.500 MHz
without a license.
II. BACKGROUND
2. On February 18, 2008, the Philadelphia Office received a complaint
from a member of the Personal Radio Association that Bear Creek was
operating radio communications equipment on several frequencies
without a license. On February 19, 2008, an agent from the FCC's
Philadelphia Office conducted a search in the Universal Licensing
System (ULS) database and found no evidence that Bear Creek was
authorized to operate radio transmitting equipment on any frequencies
in Macungie, Pennsylvania.
3. On February 21, 2008, an agent from the FCC's Philadelphia Office,
using a mobile digital direction finding vehicle, monitored several
frequencies near Bear Creek. The agent observed and recorded several
transmissions on 461.3500 MHz, 462.5000 MHz, 464.4250 MHz, and
467.7625 MHz. On 462.500 MHz, the agent heard an individual request
assistance bringing a girl with a broken wrist down the mountain. The
individual stated that the girl is located at the top of the
"Broadway" trail near the exit of the "F" chairlift. Later that day,
an agent interviewed a Bear Creek employee, who listened to the
agent's audio recordings and confirmed that the conversation
transmitted on the frequency 462.500 MHz was between employees of Bear
Creek. During a subsequent phone interview the employee acknowledged
that Bear Creek had been operating radio transmitting equipment since
2001on the frequency 462.500 MHz and others.
4. On June 5, 2008, the Commission's Philadelphia Office issued a Notice
of Apparent Liability for Forfeiture ("NAL") to Bear Creek for a
forfeiture in the amount of ten thousand dollars ($10,000) for willful
and repeated violation of Section 301 of the Act. Bear Creek filed a
response to the NAL by letter dated June 25, 2008. In its response,
Bear Creek requests a cancellation of the NAL on three grounds. First,
Bear Creek states that, prior to the inspection by FCC agents on
February 21, 2008, it did not know that a license was required for
operation of its private land mobile system. Bear Creek reports that
it purchased its radios from Global 2-Way.com ("Global 2-Way) in Marco
Island, Florida and that Global 2-Way never advised Bear Creek that it
needed a license. Second, Bear Creek claims that cancellation of the
NAL is warranted because Bear Creek personnel immediately applied for
a license once the FCC agents advised them that a license was
required. Third, Bear Creek submits that the absence of prior FCC
violations warrants cancellation of the NAL.
III. DISCUSSION
5. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that 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. As discussed below, we have considered Bear Creek's response
to the NAL in light of these statutory factors and have found that a
reduction of the proposed forfeiture amount is warranted.
6. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license. On February 21, 2008, an FCC agent
determined that Bear Creek operated radio transmitting equipment on
462.500 without an FCC license. A Bear Creek employee informed the FCC
agent that Bear Creek had been operating the radios on 462.500 MHz and
other frequencies since 2001. The violation of Section 301 of the Act
therefore is repeated.
7. In light of our determination that Bear Creek's violation was
repeated, we are not required under the Act to make a determination as
to whether the violation was willful. Section 503(b) of the Act gives
the Commission the authority to assess a forfeiture penalty against
any person if the Commission determines that the person has "willfully
or repeatedly" failed to comply with the provisions of the Act or with
any rule, regulation or order issued by the Commission. We
nevertheless address Bear Creek's other stated bases for cancelling
the NAL.
8. Bear Creek claims that the NAL should be cancelled because it did not
knowingly violate the Commission's Rules. For a violation to be
willful, it must be committed consciously and deliberately,
irrespective of any intent to violate the Rules. Bear Creek does not
dispute that it operated radio transmitting equipment on 462.500 MHz
without a license and therefore its actions were willful, as that term
is defined in the Act. As the owner and operator of the radio
equipment, Bear Creek, not its radio vendor, is responsible for
complying with all applicable FCC rules. The Commission has
consistently stated that ignorance of the law is not a mitigating
factor.
9. We also find that cancellation is not warranted based on Bear Creek's
remedial actions. Bear Creek reports that it immediately applied for a
license once it learned from the FCC agent that a license was
required. As the Commission has stated, "corrective action taken to
come into compliance with Commission rules or policy is expected, and
does not nullify or mitigate any prior forfeitures or violations."
10. We likewise decline to reduce the forfeiture amount based on Bear
Creek's claim that it has never violated the Commission's Rules. The
Commission considers downwardly adjusting a forfeiture amount only
when a licensee has a demonstrated history of compliance with our
Rules. Here, because Bear Creek did not become a Commission licensee
until after the violation at issue, it has no history with the
Commission upon which a history of compliance reduction can be based
in this instance.
11. We have examined Bear Creek's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Bear Creek
willfully and repeatedly violated Section 301 of the Act. We conclude,
however, that Bear Creek's unlicensed operation was not analogous to
the intentional unlicensed operation of a "pirate" station operator
who operates its station in flagrant violation of Commission rules. We
therefore downwardly adjust the $10,000 base forfeiture amount to five
thousand dollars ($5,000).
IV. Ordering clauses
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules that Bear
Creek Mountain Resort IS LIABLE FOR A MONETARY FORFEITURE in the
amount of five thousand dollars ($5,000) for willful and repeated
violation of Section 301 of the Act.
13. 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. Bear Creek Mountain Resort
shall also send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Bear Creek
Mountain Resort's address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt.
Regional Director, Northeast Region
Enforcement Bureau
47 U.S.C. S: 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832400006
(Enf. Bur., Philadelphia Office, released June 5, 2008).
Letter from Mark Schroetel, Bear Creek General Manager, to Philadelphia
Field Office, dated June 25, 2008.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 301.
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."
47 U.S.C. S: 503(b) (emphasis added).
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).
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991), citing Vernon
Broadcasting, Inc., 60 RR 2d 1275, 1277 (1986) and Fay Neel Eggleston, 19
FCC 2d 829 (1969).
Bear Creek was granted a private land mobile license on March 26, 2008,
Call Sign WQIN522 (Application No. 0003362190).
See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
See e.g., Gabriel Dorcely, 19 FCC Rcd 8488, 8489-90 P: 9 (Enf. Bur. 2004);
Odino Joseph, 18 FCC Rcd 16522, 16524 P: 8 (Enf. Bur. 2003).
See e.g., Gateway Security Systems, Inc., 18 FCC Rcd 24026 (EB 2003),
citing to WWC Licensee LLC, 16 FCC Rcd 19490, 19492 (2001).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f).
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-1386
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Federal Communications Commission DA 09-1386