**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-DV-0334      |
|                                  |   |                                 |
| The Starfish Television Network  | ) | NAL/Acct. No.: 200832800006     |
|                                  |   |                                 |
| Midvale, Utah                    | ) | FRN: 0016514879                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

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

> **Released**: July 31, 2008

By the District Director, Denver Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that The Starfish Television Network (\"Starfish\"), Midvale,
    Utah, apparently willfully and repeatedly violated Section 301 of
    the Communications Act of 1934, as amended, (\"Act\")[^1] and
    Section 25.102(a) of the Commission\'s Rules (\"Rules\")[^2] for
    operating its fixed satellite earth station without Commission
    authorization. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (\"Act\"),[^3] that Starfish
    is apparently liable for a forfeiture in the amount of five thousand
    dollars (\$5,000).

# BACKGROUND

2.  On April 28, 2008, in response to complaint, agents from the
    Enforcement Bureau\'s Denver Office visited the Starfish facility,
    located at 6952 South High Tech Drive, in Midvale, Utah, to conduct
    an interview with Starfish\'s Chief Operating Officer (\"COO\"). The
    conversation revealed that Starfish was operating a fixed earth
    station in the 6 GHz band, \"C-Band,\"[^4] without an authorization
    from the Commission. According to the COO, the Starfish fixed earth
    station began transmitting a compressed digital television signal on
    April 18, 2007. In addition, the COO explained that the uplink is
    transmitting to the Galaxy 11\'s transponder 19. In response to
    questions from the Denver agents, the COO produced a document
    showing that Starfish was operating the fixed earth station with a
    center frequency of 6299.5 MHz.

3.  During the April 28, 2008, interview, Starfish personnel contacted
    the company that they had contracted with to file the FCC
    application for the earth station authorization with the Commission,
    to check the status of their authorization application. Starfish
    personnel indicated that the licensing company explained that the
    licensing process had not been completed, apparently due to an item
    regarding frequency coordination, but that they would look into the
    licensing issue and get back to Starfish that same day. The COO
    stated that Starfish\'s engineering consultant had filed the station
    authorization paperwork with the licensing company about six to
    eight months earlier.

4.  Still on April 28, 2008, learning that the uplink was operating in
    the C-Band (6 GHz), FCC Agents conducted an analysis of signals
    coming from the Starfish uplink equipment and detected an RF signal
    on a center frequency of approximately 6299.5 MHz, operating with an
    occupied bandwidth of approximately 2.5 MHz.[^5] After determining
    the operating center frequency of the Starfish uplink, FCC agents
    met with the COO, the engineering consultant and a staff engineer.
    The agents issued a Notice of Unlicensed Operation (NOUO) to the
    COO. The COO signed the NOUO. The COO stated that apparently the
    licensing company had issues with one of the companies that they
    notified with the frequency coordination and that licensing company
    did not follow-up after this and the FCC license application was
    stalled and not submitted.

5.  On April 29, 2008, the Denver agents return to the Starfish uplink
    transmitter location to monitor the RF output of the uplink. The
    agents observed an RF signal operating on a center frequency of
    about 6299.5 MHz and with an occupied bandwidth of approximately 2.5
    MHz.[^6]

6.  On April 30, 2008, the Denver Office received a response from the
    COO to the NOUO to Starfish. The COO acknowledged his failure to
    follow up with licensing company to ensure that the earth station
    authorization was approved and granted by the Commission and
    enclosed a copy of the Application for new Earth Station
    Authorizations, FCC Form 312, submitted for The Starfish Television
    Network along with a Payment Confirmation for The Starfish
    Television Network dated April 28, 2008.

7.  A review of Commission records revealed that the Starfish
    application for authorization for its earth station was published in
    a Commission Public Notice on May 7, 2008.[^7] Further review
    revealed that Starfish\'s application for authorization of its earth
    station was granted effective June 9, 2008.[^8]

# DISCUSSION

8.  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) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^9] The term \"repeated\" means
    the commission or omission of such act more than once or for more
    than one day.[^10]

9.  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.[^11] On April
    28, 2008, investigation by Denver agents revealed that Starfish was
    operating on 6299.5 MHz, a frequency not authorized for its use by
    the Commission. Starfish received a NOUO from the Denver agents
    warning it against continuing to operate on channels for which it
    did not hold a valid station authorization. Again, on April 29,
    2008, the Denver agents found Starfish operating on 6299.5 MHz
    without a Commission authorization. Starfish\'s Chief Operations
    Officer admitted to operating a fixed satellite earth station on
    6299.5 MHz from The Starfish Television Network located at 6952
    South High Tech Drive, Midvale, Utah, for approximately one year
    without a valid authorization issued by the FCC. Consequently,
    Starfish\'s violation was willful. The violation occurred for more
    than one day, therefore, it was repeated. Based on the evidence
    before us, we find that Starfish apparently willfully and repeatedly
    violated Section 301 of the Act and Section 25.102(a) of the Rules
    by operating an earth station in the fixed satellite service without
    the benefit of a license granted by the Commision.

10. 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 operation of a station
    without an instrument of authorization is \$10,000.[^12] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(E) 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.[^13] Applying
    the *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Starfish\'s operation
    is not analogous to a \"pirate\" station operator, and,
    consequently, we downwardly adjust the proposed forfeiture amount to
    \$5,000.[^14] We conclude that Starfish is apparently liable for a
    \$5,000 forfeiture.

# ORDERING CLAUSES

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, The Starfish
    Television Network, is hereby **NOTIFIED** of this **APPARENT
    LIABILITY FOR A FORFEITURE** in the amount of five thousand dollars
    (\$5,000) for violations of Sections 301 of the Act and 25.102(a) of
    the Rules.[^15]

12. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, The Starfish Television
    Network, **SHALL PAY** the full amount of the proposed forfeiture or
    **SHALL FILE** a written statement seeking reduction or cancellation
    of the proposed forfeiture.

13. 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. [^16] Please contact the Financial Operations Group Help
    Desk at 1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any
    questions regarding payment procedures.

14. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Denver District
    Office**,** 215 South Wadsworth Boulevard, Suite 303, Lakewood,
    Colorado, 80226, and must include the NAL/Acct. No. referenced in
    the caption. An electronic copy shall be sent to
    WR-Response@fcc.gov.

15\. 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.

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 The Starfish Television Network.

FEDERAL COMMUNICATIONS COMMISSION

Nikki P. Shears

District Director

Denver District Office

Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: 47 C.F.R. § 25.102(a).

[^3]: 47 U.S.C. § 503(b).

[^4]: 3700 -- 4200 and 5925 -- 6425 MHz bands.

[^5]: Measurements were made using the Agilent E4440A, PSA Series
    Spectrum Analyzer, 3 Hz -- 26.5 GHz and Antenna Research, DRG-118/A,
    1-18 GHz, Horn Antenna.

[^6]: Measurements were made using the Agilent E4440A, PSA Series
    Spectrum Analyzer, 3 Hz -- 26.5 GHz and Antenna Research, DRG-118/A,
    1-18 GHz, Horn Antenna.

[^7]: In the *FCC Public Notice, Satellite Radio Applications Services*,
    Report No. SES-01030, dated May 7, 2008, The Starfish Television
    Network is found on page 3 of 8 with a reference number of
    SES-LIC-20080428-00496. The application request a frequency band of
    6165 -- 6425 MHz and emission of 3M00G7W for the location at 6952
    Hightech Drive, Suite C, Midvale, UT, with coordinates of 40º 37\'
    30.90\" north latitude, 111º 53\' 53.40\" west longitude.

[^8]: *FCC Public Notice, Satellite Radio Applications Services*, Report
    No. SES-01041, dated June 11, 2008

[^9]: 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).

[^10]: 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.\"

[^11]: 47 U.S.C. § 301, 47 C.F.R. § 25.102(a).

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

[^13]: 47 U.S.C. § 503(b)(2)(E).

[^14]: *See Gateway Security Systems, Inc.*, 18 FCC Rcd 24026 (EB 2003).

[^15]: 47 U.S.C. §§ 503(b), 301, 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    25.102(a).

[^16]: *See* 47 C.F.R. § 1.1914.