Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-06-LA-086       |
|                                  |   |                                 |
| Macerich -- Santa Monica Place   | ) | NAL/Acct. No.: 200632900011     |
|                                  |   |                                 |
| Licensee of Station WQCI991      | ) | FRN: 0011720653                 |
|                                  |   |                                 |
| Santa Monica, California         | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: March 26, 2007 Released: March 28, 2007**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this Forfeiture Order ("*Order*"), we issue a monetary forfeiture
    in the amount of three thousand, two hundred dollars (\$3,200) to
    Macerich -- Santa Monica Place ("Macerich"), licensee of land mobile
    station WQCI991, for willful and repeated violation of Section
    1.903(a) of the Commission's Rules (\"Rules\").[^1] On May 31, 2006,
    the Enforcement Bureau's Los Angeles Office issued a Notice of
    Apparent Liability for Forfeiture ("*NAL*") in the amount of \$4,000
    to Macerich after determining that Macerich apparently willfully and
    repeatedly operated on 461.0125 MHz, a frequency not authorized by
    the WQCI991 license in Santa Monica, California.[^2] In this
    *Order*, we consider Macerich's arguments that the violation was not
    willful; that Macerich has a history of compliance with the
    Commission's Rules; and that Macerich has since ensured that its
    operation was in compliance with the Rules.

# II. BACKGROUND

2.  On February 13, 2006, the Los Angeles Office received an
    interference complaint concerning Macerich's allegedly unauthorized
    repeater station operating on 461.0125 MHz in Santa Monica,
    California. A review of the Commission's databases revealed no
    authorization for any station to operate on 461.0125 MHz in that
    area.

3.  On March 27, 2006, and April 4, 2006, an agent from the Los Angeles
    Office used mobile direction finding techniques to locate
    radio-repeater transmissions on 461.0125 MHz to the Santa Monica
    Place shopping mall in Santa Monica, California. After locating the
    repeater station on April 4, 2006, the Los Angeles agent interviewed
    the Security Manager for Macerich who stated that the repeater
    transmitting on 461.0125 MHz had been in operation for over a year
    and produced a copy of Macerich's license for WQCI991. The license
    authorized Macerich to operate on other UHF band frequencies but not
    on 461.0125 MHz.[^3] The Los Angeles agent informed the Security
    Manager that the current license did not authorize the use of the
    461.0125 MHz repeater and the Security Manager stated that he would
    immediately stop using that frequency.

4.  On May 31, 2006, the Los Angeles Office issued a *NAL* in the amount
    of \$4,000 to Macerich. In the *NAL*, the Los Angeles Office found
    that Macerich apparently willfully and repeatedly operated on
    461.0125 MHz, a frequency not authorized by the WCI991 license.
    Macerich filed a response to the *NAL* on June 7, 2006
    ("*Response*"). In its *Response*, Macerich argues that it did not
    willfully violate the Rules, that it has a history of compliance
    with the Commission's Rules, that it took steps to ensure that it
    came into compliance with Rules after the inspection by the Los
    Angeles agent and, consequently, the *NAL* should be cancelled.

# III. DISCUSSION

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^4] Section 1.80 of the
    Rules,[^5] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^6] In examining the *Response*, Section 503(b) of the
    Act requires that the Commission 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 other such matters as justice may
    require.[^7]

6.  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.[^8] On March 27, 2006, and
    April 4, 2006, a Los Angeles agent determined that Macerich was
    operating its land mobile station, WQCI991 on 461.0125 MHz, a
    frequency not authorized by its license.

7.  In its *Response*, Macerich acknowledges that it operated WQCI991 on
    461.0125 MHz. Macerich states that its prior license KNEN676,
    authorized the use of 461.0125 MHz and Macerich did not realize that
    the frequencies it was authorized to use had been changed.
    Consequently, Macerich states that it had no "willful or malicious
    intents" to violate the Rules or to operate WQCI991 on an
    unauthorized frequency. A licensee is required to operate on the
    frequency stated in its authorization.[^9] Section 312(f)(1) of the
    Act,[^10] 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...."[^11] While we appreciate that Macerich
    may not have kept track of its FCC applications and authorizations,
    its Security Manager acknowledged to the Los Angeles agent that it
    was operating its station, WQCI991, on 461.0125 MHz, a frequency not
    authorized on the WQCI991 license. Pursuant to Section 312(f)(1),
    this action alone is enough to show that Macerich willfully violated
    Section 1.903(a); Macerich's actual intent is irrelevant.[^12]
    Consequently, we find that Macerich willfully violated Section
    1.903(a) of the Rules. In any event, Macerich operated on the
    incorrect frequency for more than a year, therefore, its violation
    was repeated.

8.  Macerich also contends that it has never previously had compliance
    issues with the Commission and, consequently, it has a history of
    overall compliance with the Commission's Rules. We have reviewed our
    records and we concur. Consequently, we reduce Macerich's forfeiture
    amount from \$4,000 to \$3,200.

9.  Macerich also argues that it ensured that its operation of WQCI991
    came into compliance after the inspection by the Los Angeles agent.
    While we appreciate Macerich's efforts, the Commission has
    consistently held that a licensee is expected to correct errors when
    they are brought to the licensee's attention and that such
    correction is not grounds for a downward adjustment in the
    forfeiture.[^13] Therefore, we find no merit to this argument.

10. We have examined the *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
    Macerich willfully and repeatedly violated Section 1.903(a) of the
    Rules. Considering the entire record and the factors listed above,
    we find that reduction of the proposed forfeiture to \$3,200 is
    warranted.

# IV. ORDERING CLAUSES

11. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Macerich --
    Santa Monica Place **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of \$3,200 for willfully and repeatedly violating Section
    1.903(a) of the Rules.[^14]

12. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^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. Requests for full payment under an installment
    plan should be sent to: Associate Managing Director -- Financial
    Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
    20554.[^16]

13. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Macerich -- Santa Monica Place, at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632900011 (Enf. Bur., Western Region, Los Angeles Office,
    released May 31, 2006).

[^3]: A previous license, KNEN676, issued to the Santa Monica Place
    management company, SMPL Management, Inc., authorized the use of
    461.0125 MHz and other frequencies. This license was cancelled,
    however, on December 7, 2003.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 47 C.F.R. § 1.903(a).

[^9]: *Dominic DeNaples*, 19 FCC Rcd 12303 (EB 2004).

[^10]: 47 U.S.C. § 312(f)(1)

[^11]: *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^12]: We also note, as the Los Angeles Office did in the *NAL*, that
    the KNEN676 license was cancelled on December 7, 2003. *NAL* at n.3.
    The WQCI991 license was granted to Macerich on March 16, 2005.

[^13]: *AT&T Wireless Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^14]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    1.903(a).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.