**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

**Florida Power and Light Company** )

)

Notice of Apparent Liability for Forfeiture )

) File No. 920EF0026

Licensee of Private Land Mobile Radio )

Service )

Station KNDT378, Fort Pierce, FL )

Station WBN240, Port Saint Lucie, FL )

Station WBN47, Miami, FL )

Station WDN404, Indiantown, FL )

Station WFM912, Indiantown, FL )

Station WNLC610, Sarasota, FL )

Station WPAR819, Edgewater, Palatka, )

Sanford, FL )

Station WPAT225, Hollywood, Pompano )

Sunrise, Hialeah, FL )

# NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: May 6, 1999 Released: May 7, 1999**

By the Chief, Enforcement and Consumer Information Division,

Wireless Telecommunications Bureau:

## **I. Introduction**

1\. This is a Notice of Apparent Liability for Forfeiture, pursuant to
Section 503(b) of the Communications Act of 1934, (the "Act") as
amended,[^1] and Section 1.80 of the Commission's Rules,[^2] against
Florida Power and Light Company ("FPL"), licensee of Private Land Mobile
Radio Service stations: KNDT378 in Fort Pierce, Florida; WBN240 in Port
Saint Lucie, Florida; WBN47 in Miami, Florida; WDN404 in Indiantown,
Florida; WFM912 in Indiantown, Florida; WNLC610 in Sarasota, Florida;
WPAR819 in Edgewater, Palatka, and Sanford, Florida; and WPAT225 in
Hollywood, Pompano, Sunrise, and Hialeah, Florida. For the reasons that
follow, we find that FPL operated these stations with expired licenses,
in apparent violation of Section 301 of the Act,[^3] and Section 90.113
of the Commission's Rules.[^4] We conclude that FPL is apparently liable
for a forfeiture in the amount of \$16,000.

### II. Background

2\. FPL's licenses for the above captioned Private Land Mobile Radio
Service stations expired between February 25, 1997 and April 18, 1998.
Specifically, the license for Station KNDT378 in Fort Pierce, Florida,
expired on October 2, 1997; WBN240 in Port Saint Lucie, Florida, expired
on October 2, 1997; WBN47 in Miami, Florida, expired on October 2, 1997;
WDN404 in Indiantown, Florida, expired on April 18,1998; WFM912 in
Indiantown, Florida, expired on February 25, 1997; WNLC610 in Sarasota,
Florida, expired on March 7, 1998; WPAR819 in Edgewater, Palatka, and
Sanford, Florida, expired on September 29, 1997; and WPAT225 in
Hollywood, Pompano, Sunrise, and Hialeah, Florida expired on October 8,
1997. FPL did not file timely applications to renew any of these
licenses.

3\. On July 17, 1998, FPL was granted verbal Special Temporary Authority
to operate the above captioned Private Land Mobile Radio Service
stations by Mary Shultz, Chief, Licensing & Technical Analysis Branch,
Wireless Telecommunications Bureau.[^5] Pursuant to Section 90.145 of
the Commission's Rules,[^6] FPL then filed a written request for the
Special Temporary Authority on July 23, 1998.[^7] In its written
request, FPL stated that the licenses for the above captioned Private
Land Mobile stations "expired without renewal, some for a period of many
months."[^8] FPL further stated that "upon realizing" that the licenses
had expired, it "immediately" requested a Special Temporary Authority to
enable FPL to continue to operate the stations.[^9]

### III. Discussion

4\. Section 301 of the Act[^10] provides in pertinent part, "No person
shall use or operate any apparatus for the transmission of energy or
communications or signals by radio . . . except under and in accordance
with this Act and with a license in that behalf granted under the
provisions of this Act." Similarly, Section 90.113 of the Commission's
Rules provides in pertinent part, "Station Authorization Required. No
radio transmitter shall be operated . . . except under and in accordance
with a proper authorization granted by the Commission."[^11] Section
503(b) of the Act and Section 1.80 of the Commission's Rules further
provide that a forfeiture penalty may be assessed against a person who
is found to have willfully or repeatedly failed to comply with the
Commission's rules.[^12] The Commission has held that an act or omission
is "willful" if it is a conscious act or omission whether or not there
is any intent to violate the rule.[^13]

5\. Based upon FPL's submissions, we find that FPL willfully and
repeatedly violated Section 301 of the Act[^14] and Section 90.113 of
the Commission's Rules.[^15] Once FPL's licenses expired, it lacked the
required authority to operate those stations. FPL's apparent violations
continued from the time the respective licenses expired until, at a
minimum, the verbal Special Temporary Authority was granted. We note
that FPL voluntarily brought this matter to the Bureau's attention.

6\. The guidelines contained in the Commission's *Forfeiture Policy*
*Statement*, which became effective on October 14, 1997, specify a base
forfeiture amount of \$4,000 for using an unauthorized frequency.[^16]
The guidelines, however, permit the Commission to issue a higher or
lower forfeiture than provided in the guidelines.[^17] Section
503(b)(2)(D) of the Act requires the Commission to consider "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 such other matters as justice may require."[^18] In
this case, taking into consideration all of the factors required by
Section 503(b)(2)(D) of the Act,[^19] including, but not limited to, the
nature of the stations in question, the number of stations involved, the
length of time during which the unlawful operation took place, FPL's
voluntary disclosure of its violations to the Commission, and its prompt
taking of remedial action once it realized the licenses had expired, we
believe it is appropriate to reduce the amount of the proposed
forfeiture from \$4,000 per station to \$2,000 for each of the eight
stations, for a total forfeiture of \$16,000.

### IV. Conclusion and Ordering Clause

7\. Based on the foregoing, we find that FPL continued to operate
multiple Part 90 stations after the expiration of its authorizations, in
apparent violation of Section 301 of the Act[^20] and Section 90.113 of
the Commission's Rules.[^21] FPL operated some of the stations without a
valid authorization for approximately one year. We conclude that a
forfeiture in the amount of \$16,000 is appropriate.

8\. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
1934, as amended,[^22] and Section 1.80 of the Commission's Rules,[^23]
Florida Power and Lighting Company is hereby NOTIFIED of this APPARENT
LIABILITY FOR FORFEITURE in the amount of sixteen thousand dollars
(\$16,000) for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended,[^24] and Section 90.113 of the
Commission's Rules.[^25]

9\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, 47 C.F.R. § 1.80, that within thirty days of the release of this
Notice, Florida Power and Light Company SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.[^26]

10\. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Florida Power and Light
Company, P.O. Box 029100, Miami, FL 33102, and to counsel for Florida
Power and Light Company, Ms. Carole C. Harris, Esq., McDermott, Will &
Emery, 600 13^th^ Street, N.W., Washington, D.C. 20005-3096.

FEDERAL COMMUNICATIONS COMMISSION

Catherine W. Seidel

Chief, Enforcement and Consumer Information Division

Wireless Telecommunications Bureau

[^1]: 47 U.S.C. § 503(b).

[^2]: 47 C.F.R. § 1.80.

[^3]: 47 U.S.C. § 301.

[^4]: 47 C.F.R. § 90.113. After FPL had requested Special Temporary
    Authority, this rule was replaced by Section 1.903 of the
    Commission's Rules. S*ee* *In the Matter of Biennial Regulatory
    Review - - Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90,
    95, 97, and 101 of the Commission's Rules to Facilitate the
    Development and Use of the Universal Licensing System in the
    Wireless Telecommunications Services*, WT Docket No. 98-20, 13 FCC
    Rcd 21027 (1998) (The appendices were not included, but the text of
    the new rules can be found at 63 Fed. Reg. 68904, 68921 (December
    14, 1998)). During the period prior to the time that FPL requested
    Special Temporary Authority, however, Section 90.113 of the
    Commission's Rules was the pertinent rule.

[^5]: ^?^ *See* Letter from Everett C. Stonebraker, Manager of Programs
    & Radio Operations, Florida Power and Light Company, to Mary Shultz,
    Chief, Licensing & Technical Analysis Branch, Wireless
    Telecommunications Bureau dated July 23, 1998. ("Stonebraker
    Letter"). *See also* Letter from Carole C. Harris, Attorney at Law,
    McDermott, Will & Emery, to Mary Shultz, Chief, Licensing &
    Technical Analysis Branch, Wireless Telecommunications Bureau, dated
    July 17, 1998, and received on July 20, 1998.

[^6]: 47 C.F.R. § 90.145.

[^7]: ^?^ *See* Stonebraker Letter at 1.

[^8]: *Id.*

[^9]: *Id.*

[^10]: 47 U.S.C. § 301.

[^11]: ^?^ 47 C.F.R. § 90.113 (emphasis in the original).

[^12]: ^?^ 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^13]: *Southern California Broadcasting Company*, 6 FCC Rcd 4387 (1991)
    (the definition of willfulness contained in 47 U.S.C. § 312(f)
    applies equally to 47 U.S.C. § 503).

[^14]: 47 U.S.C. § 301.

[^15]: ^?^ 47 C.F.R. § 90.113.

[^16]: ^?^ *The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Commission's Rules (Forfeiture Policy
    Statement)*, 12 FCC Rcd 17087, 17113 (1997).

[^17]: ^?^ *Forfeiture Policy Statement*, *supra*, 12 FCC Rcd at 17112.

[^18]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^19]: *Id.*

[^20]: 47 U.S.C. § 301.

[^21]: 47 C.F.R. § 90.113.

[^22]: ^?^ 47 U.S.C. § 503(b).

[^23]: ^?^ 47 C.F.R. § 1.80.

[^24]: ^?^ 47 U.S.C. § 301.

[^25]: ^?^ 47 C.F.R. § 101.5.

[^26]: ^?^ Payment of the forfeiture may be made by credit card through
    the Commission's Billings and Collections Branch at (202) 418-1995
    or by mailing a check or similar instrument, payable to the order of
    the Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note the file number in the caption of this
    proceeding.