A friend and fellow FCC watcher sent in the Notice of Apparent Liability assessed against DirecTV, suggesting that this could be used as an example of how XM's and Sirius' non-compliant repeaters might be treated, especially those operating without operating without a license.
DirecTV was hit with a Notice of Apparent Liability (NAL) in the amount of $10,400 for operating its earth station without Commission authority and for failing to file a timely renewal application.
The maximum penalty is $10,000 for operating without a license and $3,000 for failing to file in a timely matter. The FCC first proposed cutting each in half for a total of $6,500 then considered DirecTv's ability to pay and raised it to $13,000 ("From those according to their ability..."). Because no interfered occurred and DirecTv made voluntary disclosures to the FCC, the FCC reduced the fine to $10,400.
Both XM and Sirius made voluntary disclosures to the FCC and no interference occurred, so these should be considered mitigating circumstances. Plus, their ability to pay could be considered a mitigating circumstance.
Here is the NAL:
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
DirecTV Enterprises, LLC
Satellite Earth Station, Call Sign E950349
El Segundo, CA
File No. EB-06-SE-202
NAL/Acct. No. 200732100019
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 27, 2007 Released: March 29, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find DirecTV Enterprises, LLC
(“DirecTV”), licensee of satellite earth station, call sign E950349, El Segundo, California, apparently liable for forfeiture in the amount of ten thousand, four hundred dollars ($10,400) for operating its earth station without Commission authority and for failing to file a timely renewal application. DirecTV acted in apparent willful and repeated violation of Section 301 of the Communications Act of 1934, as amended, (“Act”)1 and Sections 25.102(a) and 25.121(e) of the Commission's Rules (“Rules”).
2. DirecTV’s license for its Ku-band fixed satellite service earth station, call sign E950349,
expired on October 27, 2005. On April 27, 2006, counsel for DirecTV indicated to International Bureau staff that the license for the earth station was not renewed prior to its expiration date. On May 1, 2006, DirecTV filed a request for special temporary authority (“STA”) to operate the earth station pending grant of an application for a new earth station license. The International Bureau granted DirecTV’s STA request on May 2, 2006, but rescinded the grant on May 3, 2006, and dismissed the STA request as defective on May 5, 2006.3 On the same day, May 5, 2006, DirecTV filed another STA request, which the International Bureau granted on May 18, 2006
3. Because it appeared that DirecTV may have operated the earth station without authority
after expiration of its license, the International Bureau referred this case to the Enforcement Bureau for investigation and possible enforcement action. On November 9, 2006, the Enforcement Bureau's Spectrum Enforcement Division (“Division”) issued a letter of inquiry (“LOI”) to DirecTV.
4. In its December 22, 2006 response to the LOI,6 DirecTV states that it first became aware
“on or about April 27, 2006” that its license for earth station E950349 had expired. DirecTV
acknowledges that it operated earth station E950349 without authority from October 27, 2005 to May 2, 2006 when the International Bureau granted an STA. DirecTV asserted that once it realized that its license for earth station E950349 had expired, it initiated steps to apply for an STA to continue operating its earth station pending Commission action on a new license application. The International Bureau granted its application for a new license on August 25, 2006.
5. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the use or operation of any apparatus for the transmission of energy or communications or signals by an earth station except under, and in accordance with a Commission granted authorization. Additionally, Section 25.121(e) of the Rules requires that licensees file renewal applications for earth stations “no earlier than 90 days, and no later than 30 days, before the expiration of the license.”
6. As a Commission licensee, DirecTV was required to timely renew its authorization in order to operate its earth station. DirecTV concedes that it has operated earth station E950349 without Commission authorization from October 27, 2005, to May 2, 2006. By operating its earth station for approximately six months without authorization, DirecTV apparently violated Section 301 of the Act and Section 25.102(a) of the Rules. DirecTV also apparently violated Section 25.121(e) of the Rules by allowing its license to lapse without renewal.
7. Section 503(b) of the Act,9 and Section 1.80(a) of the Rules,10 provide that any person
who willfully or repeatedly fails to comply with the provisions of the Act or the Rules shall be liable for a forfeiture penalty. For purposes of Section 503(b) of the Act, the term “willful” means that the violator knew that it was taking the action in question, irrespective of any intent to violate the Commission's rules, and “repeatedly” means more than once.11 Based upon the record before us, it appears that DirecTV’s violations of Section 301 of the Act and Sections 25.102(a) and 25.121(e) of the Rules were willful and repeated.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E) of the Act directs
us to consider factors, such as “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.” Having considered the statutory factors, as explained below, we propose a forfeiture of $10,400.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of ten thousand dollars ($10,000) for operation of a station without Commission authority and three thousand dollars ($3,000) for
failure to file required forms or information.13 As the Commission recently held, a licensee’s failure to timely file a renewal application and its continued operations without authorization constitute separate violations of the Act and the Rules and warrant the assessment of separate forfeitures.
10. We propose a forfeiture in the amount of $5,000 for DirecTV’s unauthorized operation of
its earth station E950349 after October 27, 2005. In proposing this forfeiture amount, we recognize that the Commission considers a licensee who operates a station with an expired authorization in better stead than a pirate broadcaster who lacks prior authority, and thus downwardly adjust the $10,000 base forfeiture amount accordingly.15 Consistent with precedent,16 we also propose a forfeiture in the amount of $1,500 for DirecTV’s failure to file a renewal application for its earth station within the time period specified in Section 25.121(e) of the Rules. Thus, we propose an aggregate forfeiture amount of $6,500 ($5,000 for unauthorized operation and $1,500 for failure to file a timely renewal application).
11. The $6,500 base forfeiture amount is subject to adjustment, however. In this regard, we
consider DirecTV’s size and ability to pay a forfeiture. To ensure that forfeiture liability is a deterrent, and not simply a cost of doing business, the Commission has determined that large or highly profitable companies, such as DirecTV, could expect the assessment of higher forfeitures for violations. Given DirecTV’s size and ability to pay a forfeiture, we conclude that an upward adjustment of the base amount to $13,000 is appropriate.
12. DirecTV claims that renewal of its earth station was the responsibility of its Latin America operations and was “managed by a separate arm of the company.” Thus, DirecTV explains,
timely renewal of earth station E950349 “slipped through the cracks.” As a Commission licensee, DirecTV is charged with the responsibility of knowing and complying with the terms of its authorizations, the Act and the Rules, including the requirement to timely renew the authorization for its earth station.19 DirecTV also states that no interference occurred during its operation of its earth station. It is well established that the absence of public harm is not considered a mitigating factor for a rule violation. We do find, however, that a downward adjustment of the proposed forfeiture from $13,000 to $10,400 is warranted because DirecTV made voluntary disclosures to Commission staff and undertook corrective measures after learning of its violations, but prior to any Commission inquiry or initiation of enforcement action.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act22 and Sections 0.111, 0.311 and 1.80 of the Rules,23 DirecTV IS hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand, four hundred dollars ($10,400) for the willful and repeated violation of Section 301 of the Act and Sections 25.102(a) and 25.121(e) of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,24 within thirty
days of the release date of this Notice of Apparent Liability for Forfeiture, DirecTV SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
15. 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. Request for full payment of the NAL amount under an installment plan should be sent to: Associate Managing Director – Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.25
16. The response, if any, must be mailed to the Office of the Secretary, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN:
Enforcement Bureau – Spectrum Enforcement Division, and must include the NAL/Acct. No. referenced in the caption.
17. 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; 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.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for
Forfeiture shall be sent by first class mail and certified mail return receipt requested to William M. Wiltshire, Esq., Counsel for DirecTV Enterprises, Harris, Wiltshire & Gannis, LLP, 1200 Eighteenth Street, NW, Washington, DC 20036 and Mr. Jack Wengrynuik, DirecTV Enterprises, LLC, 2230 E. Imperial Hwy, El Segundo, CA 90245.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
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