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: 0010769438                 |
|                                  |   |                                 |
| San Diego, California            | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: August 23, 2006 Released: August 25, 2006**

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 four thousand dollars (\$4,000) to
    Lamkin Corporation ("Lamkin"), for willful and repeated violation of
    Section 1.903(a) of the Commission's Rules (\"Rules\").[^1] On
    September 28, 2005, the Enforcement Bureau's San Diego Office issued
    a *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$4,000 to Lamkin after determining that Lamkin apparently
    willfully and repeatedly operated microwave radio transmitting
    equipment on an unauthorized microwave channel of 21245.0 MHz[^2] in
    San Diego, California. In this *Order*, we consider Lamkin's
    argument that Lamkin did not willfully or repeatedly operate in
    violation of the Rules.

# II. 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.[^3]

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.[^4]
    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.

6.  On September 28, 2005, the San Diego Office issued a *NAL* in the
    amount of \$4,000 to Lamkin.[^5] In the *NAL*, the San Diego Office
    found that Lamkin apparently willfully and repeatedly operated
    microwave radio transmitting equipment on an unauthorized microwave
    channel of 21245.0 MHz[^6] in San Diego, California. Lamkin filed a
    response to the *NAL* on October 28, 2005 ("*Response*"). In its
    *Response*, Lamkin argues that it did not commit a "willful"
    violation of the Rules, as defined by the Communications Act of
    1934, as amended ("Act"), and, therefore, the *NAL* should be
    cancelled.[^7] Lamkin also argues that it did not knowingly cause
    the transmissions to be repeated. Finally, Lamkin asserts that it
    corrected the error as soon as it was notified by the San Diego
    Office.

# III. DISCUSSION

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^8] Section 1.80 of the
    Rules,[^9] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^10] 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.[^11]

8.  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
    admitted to the San Diego Office that its microwave radio station
    had been operating on the wrong frequency ever since it was first
    installed in 2003.

9.  In its *Response*, Lamkin acknowledges that it operated its
    microwave station WQBQ706 on 21245.0 MHz. However, Lamkin argues
    that it did not willfully violate Section 1.903(a) because Section
    312(f)(1) of the Act defines "willful" as the "conscious and
    deliberate commission or omission of \[any\] act . . . ."[^12]
    Lamkin states that it "did not know" and "did not plan in advance to
    operate" on microwave channel 21245.0 MHz.[^13] Lamkin further
    states, and supports with an affidavit from its radio service
    company, that the manufacturer of the equipment mislabeled the
    equipment to show the frequency of 22475.25 MHz on the equipment,
    but programmed the equipment to transmit on the reciprocal
    frequency, for this cross-border operation, of 21245.0 MHz. Lamkin
    argues that it therefore did not consciously or deliberately operate
    its microwave station on 21245.0 MHz.

10. The Commission has long held that licensees are responsible for the
    acts and omissions of their employees and independent contractors
    and has "consistently refused to excuse licensees from forfeiture
    penalties where actions of employees or independent contractors have
    resulted in violations."[^14] In this case, Lamkin consciously and
    deliberately operated WQBQ706. Lamkin apparently relied on its radio
    service company to ensure the station operated within the parameters
    of the WQBQ706 authorization. Lamkin's radio service company, after
    contracting with the equipment company for the manufacture of the
    WQBQ706 transmitting equipment, failed for almost two years to
    discover the unauthorized frequency being used by the WQBQ706
    transmitter. Therefore, Lamkin operated WQBQ706 on an unauthorized
    frequency for almost two years until being notified by the San Diego
    Office. A licensee is required to operate on the frequency stated in
    its authorization,[^15] and while Lamkin apparently relied on its
    radio service company to ensure its compliance with the WQBQ706
    authorization, we are compelled to treat the error by Lamkin's radio
    service company as an error by Lamkin itself. Therefore, we find
    that Lamkin's violation was willful. However, even if we were to
    find that Lamkin's violation was not willful, its liability would
    not be decreased, as we find that its violation was repeated.

11. Lamkin argues that its transmissions on 21245.0 MHz were done
    without its knowledge and that it if these transmissions were
    repeated or continuous, such operation cannot be attributed to
    Lamkin. We disagree. Section 312(f)(2) of the Act defines "repeated"
    as "the commission or omission of such act more than once or, if
    such commission or omission is continuous, for more than one
    day."[^16] In this case, the evidence is clear, and Lamkin admits,
    that its operation of WQBQ706 on 21245.0 MHz occurred for more than
    one day. Therefore, we find no merit to this argument.

12. Finally, Lamkin asserts that it took prompt action to correct its
    mistake concerning its operations on 21245.0 MHz. As the San Diego
    Office stated in the *NAL*, 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.[^17]

13. 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
    Lamkin willfully and repeatedly violated Section 1.903(a) of the
    Rules. Considering the entire record and the factors listed above,
    we find that neither reduction nor cancellation of the proposed
    \$4,000 forfeiture is warranted.

# IV. ORDERING CLAUSES

14. **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, Lamkin
    Corporation **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    \$4,000 for willfully and repeatedly violating Section 1.903(a) of
    the Rules.[^18]

15. 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.[^19] 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.[^20]

16. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Lamkin Corporation, at its address of record, and its counsel of
    record, Frederick J. Day, Esquire.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: *See* 47 C.F.R. § 101.147(s).

[^3]: The actual measurement taken by the agent showed that the station
    was operating on 21243.5 MHz.

[^4]: 21243.5 MHz is within the maximum allowable tolerance of microwave
    channel 21245.0 MHz. *See* 47 C.F.R. § 101.147(s).

[^5]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200532940007 (Enf. Bur., Western Region, San Diego Office, released
    September 28, 2005).

[^6]: *See* 47 C.F.R. § 101.147(s).

[^7]: In its *Response*, Lamkin incorrectly states that the *NAL* found
    Lamkin in violation of Section 301 of the Act. As stated above, and
    in the *NAL*, the violation concerned Section 1.903 of the Rules. We
    will treat Lamkin's argument concerning Section 301 of the Act as if
    it concerns Section 1.903 of the Rules, in our consideration of
    Lamkin's *Response*.

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. § 1.80.

[^10]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^11]: 47 U.S.C. § 503(b)(2)(D).

[^12]: 47 U.S.C. § 312(f)(1).

[^13]: *Response* at 3.

[^14]: *Eure Family Limited Partnership*, 17 FCC Rcd 21861, 21863 --
    21864 (2002) (quoting *Triad Broadcasting Company, Inc.*, 96 FCC 2d
    1235, 1244 (1984)).

[^15]: *Dominic DeNaples*, 19 FCC Rcd 12303 (EB 2004).

[^16]: 47 U.S.C. § 312(f)(2).

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

[^18]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    1.903(a).

[^19]: 47 U.S.C. § 504(a).

[^20]: *See* 47 C.F.R. § 1.1914.