**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-05-SD-004       |
|                                  |   |                                 |
| Lamkin Corporation               | ) | NAL/Acct. No: 200532940007      |
|                                  |   |                                 |
| Licensee of WQBQ706              | ) | FRN: 0010-7694-38               |
|                                  |   |                                 |
| San Diego, California            | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: September 28, 2005

By the District Director, San Diego Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Lamkin Corporation (\"Lamkin\"), licensee of stations
    WQBQ706, in San Diego, California, apparently willfully and
    repeatedly violated Section 1.903(a) of the Commission\'s Rules
    (\"Rules\")[^1] by operating microwave radio transmitting equipment
    on the unauthorized microwave channel of 21245.0 MHz.[^2] We
    conclude, pursuant to Section 503(b) of the Communications Act of
    1934, as amended (\"Act\"),[^3] that Lamkin is apparently liable for
    a forfeiture in the amount of four thousand dollars (\$4,000).

# BACKGROUND

2.  On January 11, 2005, an agent from the Commission's San Diego Office
    was investigating allegations that companies in the Otay Mesa area
    of San Diego were using unauthorized microwave radio stations to
    communicate with sister companies across the U.S. -- Mexico border
    in Tijuana, Mexico. The agent monitored and measured the
    transmissions of a microwave radio station operated at an office
    occupied by Lamkin Corporation, a manufacture of golf club grips, at
    6530 Gateway Park Drive, San Diego, California. The frequency
    measurement showed that this microwave radio station was operating
    on microwave channel 21245.0 MHz.[^4]

3.  The agent returned to the Lamkin office on February 4, 2005, and
    again measured the frequency of microwave radio station. The
    measurement showed that the station was operating on microwave
    channel 21245.0 MHz, the same as the January 11, 2005 measurement. A
    review of the Commission's database revealed that Lamkin has
    authorization to operate a Private Fixed Point-to-Point Microwave
    radio station under license WQBQ706 at the 6530 Gateway Park Drive
    location. However, the authorized frequency for this microwave radio
    station is 22475.25 MHz.

4.  On February 28, 2005, the agent returned to the Lamkin office and
    again found that microwave radio station WQBQ706 was operating on
    microwave channel 21245.0 MHz. At this time the agent conducted an
    inspection of the radio station with the Lamkin's office manager.
    The office manager provided the agent a copy of FCC authorization
    for WQBQ706 which indicated an authorized frequency of 22475.25 MHz
    for the station.

5.  On March 11, 2005, the San Diego Office sent a Letter of Inquiry
    ("LOI") to Lamkin concerning its unauthorized operation on 21243.5
    MHz, in violation of Section 1.903(a) of the Commission's Rules.[^5]
    The San Diego Office received a reply to the LOI on March 24, 2005.
    The reply stated that this radio station was used for Lamkin's
    internal business communications between their U.S and Mexican
    facilities. Lamkin stated that the receiver and transmitter
    frequencies of the microwave radio station had been installed
    backwards and that the improper operation had begun in September
    of 2003. The reply indicated that the proper receiver and
    transmitter frequencies had been installed and that the station was
    operating on the proper frequency. A San Diego agent confirmed that
    WQBQ706 was operating on frequency 22475.25 MHz later that day.

# 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) of the Act has been interpreted to mean simply that
    the acts or omissions are committed knowingly.[^6] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^7]

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 January 11, 2005,
    February 4, 2005, and February 28, 2005, San Diego agents determined
    that Lamkin was operating a microwave radio station, WQBQ706, on the
    unauthorized microwave channel of 21245.0 MHz. Further, Lamkin
    admits that their microwave radio station had been operating on the
    wrong frequency ever since it was first installed in 2003.

8.  Lamkin was aware of the licensed frequency for WQBQ706 but failed to
    operate on it. Therefore, its violation was willful. The violation
    occurred on more than one day, therefore, it was repeated. Based on
    the evidence before us, we find that Lamkin apparently willfully and
    repeatedly violated Section 1.903(a) of the Rules by operating a
    microwave radio station on the unauthorized microwave channel of
    21245.0 MHz.

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 using an unauthorized
    frequency is \$4,000.[^8] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(D) 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.[^9] We note that in its reply to the LOI, Lamkin
    acknowledges that it was operating on the wrong frequency and that
    it has since corrected the problem. The Commission has stated in the
    past 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.[^10]
    Additionally, a licensee is required to operate on the frequency
    stated in its authorization.[^11] Accordingly, applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors, we conclude that Lamkin is apparently liable for a
    forfeiture in the amount of \$4,000.

# 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, Lamkin Corporation is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of four thousand dollars (\$4,000) for violation of
    Section 1.903(a) of the Rules.[^12]

11. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty (30) days of the release date of
    this Notice of Apparent Liability for Forfeiture, Lamkin Corporation
    **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/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.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, San Diego Office,
    4542 Ruffner Street, Suite 370, San Diego, California 92111, within
    thirty (30) days from the release date of this Notice of Apparent
    Liability for Forfeiture and must include the NAL/Acct. No.
    referenced in the caption.

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. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^13]

16. **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 Lamkin Corporation at its
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

William R. Zears, Jr.

District Director

San Diego Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 C.F.R. § 101.147(s).

[^3]: 47 U.S.C. § 503(b).

[^4]: The actual measurement taken by the agent showed that the station
    was operating on 21243.5 MHz.

[^5]: 21243.5 MHz is within the maximum allowable tolerance of microwave
    channel 21245.0 MHz. *See* 47 C.F.R. § 101.147(s).

[^6]: Section 312(f)(1) of the Act, 47 U.S.C. § 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).

[^7]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: *AT&T Wireless Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^11]: *Dominic DeNaples*, 19 FCC Rcd 12303 (EB 2004).

[^12]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).

[^13]: ^8^*See* 47 C.F.R. § 1.1914.