Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | ) | File Number: EB-07-LA-363       |
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| Richard R. Susainathan           | ) | NAL/Acct. No.: 200832900001     |
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| Las Vegas, Nevada                | ) | FRN: 0005410709                 |
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## FORFEITURE ORDER

**Adopted: November 19, 2008 Released: November 21, 2008**

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 twelve thousand dollars (\$12,000) to Richard
    Susainathan ("Susainathan") for willful and repeated violation of
    Sections 1.903(a) and 1.947(a) of the Commission\'s Rules
    (\"Rules\").[^1] On December 18, 2007, the Enforcement Bureau's Los
    Angeles Office issued a Notice of Apparent Liability for Forfeiture
    ("*NAL*") in the amount of \$12,000 to Susainathan for operating
    fixed base transmitters from locations not authorized by the
    licenses of stations WPXC618, WPIQ777 and WPYM965, in Clark County,
    Nevada. In this *Order*, we consider Susainathan's arguments that he
    is not personally liable for the violations, that he did not intend
    to violate the rules, that the complaint against his operation was
    the result of a personal controversy, and that there was no
    potential for interference from the unauthorized operation of one of
    the three stations.

# II. BACKGROUND

2.  S M Leasing and Rental, Ltd, is the licensee of stations WPXC618,
    WPIQ777 and WPYM965.[^2] Station WPIQ777 is licensed to operate on a
    fixed base frequency of 937.9625 MHz, from Sunrise Mountain, Nevada,
    with coordinates of 36º 10′ 45.3″ north latitude, 114º 59′ 51.3″
    west longitude. Station WPYM965 is licensed to operate on a fixed
    base frequency of 937.225 MHz, from Mesquite, Nevada with
    coordinates of 36º 46′ 18″ north latitude, 114º 06′ 06″ west
    longitude. Station WPXC618 is licensed to operate on a fixed base
    frequency of 936.9125 MHz, from Sunrise Mountain, Nevada, with
    coordinates of 36º 10′ 45.3″ north latitude, 114º 59′ 51.3″ west
    longitude. Station WPXC618 is also licensed to operate on its base
    frequency from Glendale, Nevada, with coordinates 36º 41′ 02″ north
    latitude, 114º 30′ 58″ west longitude.

3.  On November 27, 2007, an agent from the Enforcement Bureau's Los
    Angeles Office using direction finding techniques, located fixed,
    continuous, unmodulated, transmissions on the three fixed base
    frequencies, listed above, associated with stations WPXC618, WPIQ777
    and WPYM965. The Los Angeles agent determined that the transmissions
    were originating from Susainathan's place of business at 3399 W.
    Oquendo Rd., Las Vegas, Nevada, with coordinates of 36º 04′ 51″
    north latitude, 115º 11′ 03″ west longitude.

4.  On November 28, 2007, the Los Angeles agent, again using direction
    finding techniques, located fixed, continuous, unmodulated,
    transmissions on the three fixed base frequencies associated with
    stations WPXC618, WPIQ777 and WPYM965. The agent determined that the
    transmissions continued to originate from Susainathan's place of
    business at 3399 W. Oquendo Road, Las Vegas, Nevada.

5.  After locating the signals on November 28, 2007, the Los Angeles
    agent met with Susainathan and inspected the transmitters
    Susainathan was operating, which were configured for continuous
    operation and connected to a rooftop antenna. Susainathan stated
    that the transmitters were undergoing several weeks of testing prior
    to being installed at their authorized operational locations. At the
    time of the inspection, Susainathan had copies of the licenses for
    the three stations which indicated the licensed base station
    locations for each station. The Los Angeles agent warned Susainathan
    that none of the licenses authorized fixed base transmissions from
    the 3399 W. Oquendo Road, Las Vegas, Nevada location.

6.  On December 18, 2007, the Los Angeles Office issued a *NAL* in the
    amount of \$12,000 to Susainathan.[^3] In the *NAL*, the Los Angeles
    Office found that Susainathan apparently willfully and repeatedly
    violated Sections 1.903(a) and 1.947(a) of the Rules by operating
    fixed base transmitters from locations not authorized by the
    licenses of stations WPXC618, WPIQ777 and WPYM965, in Clark County
    Nevada. Susainathan filed a response ("*Response"*) to the *NAL* on
    January 2, 2008. In his *Response*, Susainathan argues that he is
    not personally liable for the violations, that he did not intend to
    violate the rules to gain commercial advantage, that the complaint
    against his operation was the result of a personal controversy, and
    that there was no potential for interference from the unauthorized
    operation of one of the three stations.

# III. DISCUSSION

7.  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]

8.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Services must be operated only in accordance with the rules
    applicable to their particular service and with a valid
    authorization granted by the Commission.[^8] Section 1.947(a) of the
    Rules requires that all major modifications as defined in Section
    1.929 of the Rules, require prior Commission approval.[^9] For
    Private Land Mobile Radio Services stations, Section 1.929(c)(4)(v)
    defines a major change as, "\[c\]hange in the authorized location or
    number of base stations, fixed, control, except for deletions of one
    or more such stations...."[^10]

9.  On November 27, 2007, and November 28, 2007, a Los Angeles agent
    observed Susainathan operating on the fixed base frequencies for
    stations WPXC618, WPIQ777 and WPYM965 at 3399 W. Oquendo Road, Las
    Vegas, Nevada. This location is more than twelve miles from the
    licensed locations for stations WPXC618[^11] and WPIQ777, and more
    than 76 miles from the licensed location for station WPYM965. At the
    time of the inspection on November 28, 2007, Susainathan was aware
    that he was not operating from the licensed locations for the
    stations as he indicated to the Los Angeles agent that he was
    testing the transmitters prior to installing them at their licensed
    location.

10. In his *Response*, Susainathan does not dispute that the stations
    were operated at locations not authorized by their licenses.
    Instead, he argues that he is not the licensee of the stations and
    therefore cannot be held personally liable for the violations. He
    asserts that S M Leasing and Rental, Ltd. ("S M Leasing"), which he
    states that he controls, is the licensee and that the *NAL* against
    him should be cancelled. We disagree. As the Los Angeles Office
    noted in the *NAL*, the question of who controls S M Leasing is
    currently pending before a state court in Nevada.[^12] Consequently,
    it is not clear who controls the licensee. What is clear is that
    Susainathan was responsible for the operation of the stations at
    unauthorized locations. Section 1.903(a) requires the stations be
    operated in accordance with the rules and with a valid
    authorization. While Susainathan states that he cannot be held
    liable for this violation, he does not explain why, given that he
    does not dispute that he was responsible for the operation of the
    stations at the unauthorized location. If the Los Angeles Office had
    found S M Leasing apparently liable for the violation, it is
    unlikely that the violation would have stopped, as the control of S
    M Leasing remains in doubt. In finding Susainathan apparently
    liable, the Los Angeles Office correctly determined that such an
    action would ensure an end to the violation, as the operation of the
    stations at the unauthorized location ceased after the *NAL* was
    issued to Susainathan. Given the unique circumstances presented,
    including the state court dispute regarding the control of the
    licensee, and Susainathan's admission to the Los Angeles agent that
    he was responsible for the operation of the stations at the
    unauthorized location, we find no error in the Los Angeles Office's
    decision to issue the *NAL* to Susainathan.

11. Susainathan also argues that there he did not intend to violate the
    rules for commercial advantage. Section 312(f)(1) of the Act, 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....\"[^13] Susainathan does not dispute that the stations were
    operated at locations not authorized by their licenses, and he does
    not dispute that he indicated to the Los Angeles agent that he was
    responsible for that operation.[^14] Consequently, we find that
    Susainathan willfully violated Section 1.903(a) of the Rules,
    regardless of whether he had any specific intent to violate that
    Rule.

12. Susainathan further argues that the complaint which initiated the
    investigation was not concerning interference but was the result of
    a personal controversy and consequently the forfeiture should be
    reduced or cancelled. We find no merit in this argument. The
    Commission has broad discretion to initiate an investigation with or
    without a complaint and has a responsibility to investigate where
    there is reason to believe a rule violation is taking place.[^15]

13. Susainathan also asserts that the forfeiture amount should be
    reduced because there was no potential for station WPIQ777 to cause
    any interference, as there were no other licensees operating on
    937.9625 MHz within 70 miles of the site of the unauthorized
    operation. We disagree. It is well established that the absence of
    public harm is not considered a mitigating factor of a rule
    violation.[^16]

14. 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
    Susainathan willfully and repeatedly violated Sections 1.903(a) and
    1.947(a) of the Rules. Considering the entire record and the factors
    listed above, we find that no reduction of the proposed \$12,000
    forfeiture is warranted.

# IV. ORDERING CLAUSES

15. **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, Richard
    Susainathan, **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of \$12,000 for willfully and repeatedly violating Sections 1.903(a)
    and 1.947(a) of the Rules.[^17]

16. 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.[^18] 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.
    Richard R. Susainathan shall also send electronic notification on
    the date said payment is made to WR-Response@fcc.gov.

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Richard R. Susainathan, at his address of record, and Dennis C.
    Brown, his counsel of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.903(a), 1.947(a).

[^2]: Currently pending before a state court in Nevada, and the
    Commission's Wireless Telecommunications Bureau ("WTB"), is the
    issue of who controls S.M. Leasing and Rental, Ltd. *See, e.g., In
    the Matter of Thomas K. Kurian*, 22 FCC Rcd 7318, 7320 (WTB 2007).
    Both Susainathan and Pappammal Kurian claim control of the licensee.
    Neither the issuance of the Notice of Apparent Liability nor the
    issuance of this *Order* should be considered to prejudge the
    outcome of that dispute and should the court and WTB determine that
    Susainathan does not hold control of the licensee, we may revisit
    our investigation to determine what, if any, additional violations
    Susainathan may be liable for.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732900001 (Enf. Bur., Western Region, Los Angeles Office,
    released December 18, 2007).

[^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)
    ("*Forfeiture Policy Statement*").

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 47 C.F.R. § 1.903(a).

[^9]: 47 C.F.R. § 1.947(a); 47 C.F.R. § 1.929.

[^10]: 47 C.F.R. § 1.929(c)(4)(v).

[^11]: Susainathan's location was also more than 55 miles from station
    WPXC618's other authorized location in Glendale, Nevada.

[^12]: *NAL* at para 2, n.3.

[^13]: 47 U.S.C. § 312(f)(1).

[^14]: Although Susainathan states that the stations needed to be tested
    "for a period of time before entrusting them to their authorized
    locations," he acknowledges that the testing was done incorrectly,
    as the "transmitters should have been operated into a non-radiating
    dummy load."

[^15]: *See James A. Kay*, 13 FCC Rcd 16369 (1998). *See also* 47 U.S.C.
    § 403.

[^16]: *See Pacific Western Broadcasters, Inc.*, 50 FCC 2d 819 (1975)
    (rejecting a broadcaster's claim that the forfeiture should be
    downwardly adjusted because its operations at excessive power levels
    did not cause public harm or complaint, because the Commission not
    only is concerned with actual interference, but is concerned with
    the potential for interference). *See also, Auburn Broadcasters,
    Inc.,* 41 FCC 2d 462 (1973); *The McLendon Corp.*, 18 FCC 2d 224
    (1969).

[^17]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    1.903(a), 1.947(a).

[^18]: 47 U.S.C. § 504(a).