Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-06-LA-171       |
|                                  |   |                                 |
| Federal Express Corporation      | ) | NAL/Acct. No. 200632900013      |
|                                  |   |                                 |
| Licensee of Station WQAS435      | ) | FRN: 0010662195                 |
|                                  |   |                                 |
| Bloomington, California          | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: May 2, 2007 Released: May 4, 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 four thousand dollars (\$4,000) to
    Federal Express Corporation ("Fed Ex"), for willful and repeated
    violation of Section 1.903(a) of the Commission's Rules
    (\"Rules\").[^1] On August 17, 2006, the Enforcement Bureau's Los
    Angeles Office issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") in the amount of \$4,000 to Fed Ex after
    determining that Fed Ex apparently willfully and repeatedly operated
    on 460.250 MHz, a frequency not authorized by its license, WQAS435.
    In this *Order*, we consider Fed Ex's argument that it did not
    willfully or repeatedly operate in violation of the Rules.

# II. BACKGROUND

2.  On June 15, 2006, the Enforcement Bureau's Los Angeles Office
    received an interference complaint from the City of Riverside,
    California, Police Department, who reported that they had been
    receiving co-channel interference to their radio system licensed to
    operate on 460.250 MHz during early morning tactical operations for
    several weeks. Riverside Police also reported that they had
    previously used their own direction finding equipment and located
    the interference to the Fed Ex package distribution facility in
    nearby Bloomington, California. After locating the interference,
    Riverside Police Department personnel stated that they immediately
    contacted Fed Ex personnel, who agreed to stop operating and correct
    the problem. Several days later, however, the Riverside Police again
    noticed the interference on 460.250 MHz. The Riverside Police then
    contacted the FCC Enforcement Bureau's Los Angeles Office. A review
    of the Commission's records by the Los Angeles Office revealed that
    the Fed Ex license, WQAS435, did not include authorization for Fed
    Ex to operate on 460.250 MHz.

3.  On June 23, 2006, during early morning hours, an agent from the Los
    Angeles Office used mobile direction finding techniques to locate
    radio operations from multiple portable transmitters operating on
    460.250 MHz from within the Fed Ex facility in Bloomington. The
    communications were not identified by any call sign. After locating
    the stations, the Los Angeles agent interviewed Fed Ex personnel and
    managers. Fed Ex's Assistant Hub Manager recalled that after
    receiving the interference complaint from Riverside Police, he
    reported the problem to Fed Ex's radio service company. No follow-up
    apparently occurred between Fed Ex and the radio service company
    between June 15, 2006 and June 23, 2006. The Los Angeles agent
    measured the frequencies of several other radio channels programmed
    into the portable radios in use at the Fed Ex facility and
    discovered that, in addition to 460.250 MHz, four other channels
    were installed which were not authorized by the WQAS435 license. The
    Los Angeles agent informed Fed Ex's Local City Manager that the
    current license did not authorize the use of the 460.250 MHz, and
    the other four frequencies programmed into the radios. The Fed Ex
    Local City Manager stated that he would immediately stop using
    460.250 MHz, and check to make sure all frequencies used in the
    future were authorized.

4.  On August 17, 2006, the Los Angeles Office issued a *NAL* in the
    amount of \$4,000 to Fed Ex.[^2] In the *NAL*, the Los Angeles
    Office found that Fed Ex apparently willfully and repeatedly
    violated Section 1.903(a) of the Rules by operating on 460.250 MHz,
    a frequency not authorized by its license, WQAS435. Fed Ex filed a
    response to the *NAL* on September 20, 2006 ("*Response*"). In its
    *Response*, Fed Ex argues that its violation was not willful, as Fed
    Ex was not made fully aware of the interference by the Riverside
    Police Department. Fed Ex also argues that the violation was not
    repeated, because Fed Ex was able to resolve the interference the
    same day it was notified of the interference by the Los Angeles FCC
    agent.

# III. DISCUSSION

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^3] Section 1.80 of the
    Rules,[^4] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^5] 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.[^6]

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. The Fed Ex land mobile
    license, WQAS435, does not include an authorization to operate on
    460.250 MHz in the Riverside, California area. On June 15, 2006,
    Riverside Police reported to the Los Angeles Office that they were
    continuing to experience co-channel interference to their operations
    on 460.250 MHz. Riverside Police further reported that they had
    previously located the interference to Fed Ex's operations in
    Bloomington, California, had contacted Fed Ex about the
    interference, and had been assured by Fed Ex personnel that they
    would cease operations on 460.250 MHz and that the interference
    would be resolved. On June 23, 2006, a Los Angeles FCC agent
    determined that Fed Ex was operating its land mobile station,
    WQAS435, on 460.250 MHz, a frequency not authorized by its license.

7.  In its *Response*, Fed Ex does not dispute that it was operating on
    460.250 MHz.[^7] Instead, Fed Ex focuses its response on the steps
    that it took to respond to the Riverside Police Department's
    complaint of interference. Fed Ex acknowledges that the Riverside
    Police Department advised it, in person, that they were experiencing
    co-channel interference and further acknowledges that Fed Ex was
    unable to determine the source of the interference, until the FCC
    agent followed up after receiving the complaint from the Riverside
    Police Department and determined that Fed Ex was using handheld
    radios on frequencies not authorized by its license. Fed Ex argues
    that its response to the complaint from the Riverside Police
    Department was immediate and therefore its violation was not
    willful. In addition, Fed Ex argues that when it was investigated by
    the Los Angeles FCC agent concerning the interference, days later,
    it immediately acted and the problem was permanently resolved that
    same day.

8.  The *NAL* issued by the Los Angeles Office found that Fed Ex
    apparently violated Section 1.903(a) by operating on a frequency not
    authorized on its license. While the investigation by the Los
    Angeles Office was initiated because of the complaint of
    interference by the Riverside Police Department, Fed Ex was not
    found apparently liable for causing interference to the Riverside
    Police Department. Instead, Fed Ex was found apparently liable of
    operating its land mobile station, WQAS435, on 460.250 MHz, a
    frequency not authorized by that license. Fed Ex offers no evidence
    to dispute the Los Angeles Office finding that Fed Ex was operating
    WQAS435 on 460.250 MHz on June 15, 2006, and June 23, 2006. Fed Ex
    also does not dispute the Los Angeles Office's finding that Fed Ex
    personnel acknowledged continued operation on 460.250 MHz, even
    after the initial complaint from the Riverside Police Department. In
    addition, Fed Ex does not dispute the Los Angeles Office's finding
    that 460.250 MHz was programmed into the portable radios in use at
    the Fed Ex facility.

9.  Because Fed Ex has offered no evidence to refute the finding that it
    repeatedly operated radios on a frequency not authorized by its
    license, we affirm the Los Angeles Office's findings. A licensee is
    required to operate on the frequency stated in its
    authorization.[^8] We acknowledge that Fed Ex immediately stopped
    operation on 460.250 MHz after the Los Angeles FCC agent informed
    Fed Ex that the operation was not authorized. However, as the Los
    Angeles Office noted in the *NAL*, 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.[^9]

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 Fed
    Ex 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

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, Federal
    Express 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.[^10]

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.[^11] 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.[^12]

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
    Fed Ex Corporation, 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.
    200632900013 (Enf. Bur., Western Region, Los Angeles Office,
    released August 17, 2006).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^6]: 47 U.S.C. § 503(b)(2)(E).

[^7]: Fed Ex relies on a September 18, 2006, letter from its radio
    service company, in which the company assures Fed Ex that its
    equipment is "always on licensed frequencies." However, the radio
    service company also acknowledges that it resolved the problem
    involving a single channel based on the information provided by the
    FCC agent.

[^8]: *Dominic DeNaples*, 19 FCC Rcd 12303 (EB 2004).

[^9]: *AT&T Wireless Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^10]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    1.903(a).

[^11]: 47 U.S.C. § 504(a).

[^12]: *See* 47 C.F.R. § 1.1914.