**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-07-SE-324         |
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| Miller Breweries East, Inc.      | ) | NAL/Acct. No. 200832100011    |
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| Trenton, Ohio                    | * | FRN \# 0016100273             |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: January 08, 2008 Released: January 10, 2008**

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

#  introduction

1.  In this *Notice of Apparent Liability for Forfeiture*, we find
    Miller Breweries East, Inc. ("Miller"), former licensee of Private
    Land Mobile Radio Service ("PLMRS") station WPIM837 apparently
    liable for a forfeiture in the amount of six thousand five hundred
    (\$6,500) for operating a PLMRS station without Commission authority
    and for failing to file a timely renewal application for the
    station. Miller acted in apparent willful and repeated violation of
    Section 301 of the Communications Act of 1934, as amended,
    ("Act")[^1] and Sections 1.903(a) and 1.949(a) of the Commission's
    rules ("rules").[^2]

#  background

2.  On July 26, 2000, Miller was granted a renewal of its PLMRS station
    license under call sign WPIM837, with an expiration date of October
    12, 2005. Miller did not file a renewal application, and
    consequently its license to operate station WPIM837 expired on
    October 12, 2005. On August 16, 2007, Miller filed with the Wireless
    Telecommunications Bureau ("WTB") a request for Special Temporary
    Authority ("STA") to operate WPIM837. On August 28, 2007, WTB
    granted Miller's STA request under call sign WQHL302.[^3]

3.  Because it appeared that Miller may have operated WPIM837 after the
    expiration of its license, WTB referred this case to the Enforcement
    Bureau for investigation and possible enforcement action. On October
    18, 2007, the Enforcement Bureau's Spectrum Enforcement Division
    issued a letter of inquiry ("LOI")[^4] to Miller.

4.  In its November 16, 2007 response to the LOI,[^5] Miller stated that
    it believes it first became aware of the expiration of its license
    for station WPIM837 on or about January 27, 2007.[^6] Miller stated
    that upon confirming the expiration of its license, it initially
    worked with an outside vendor to prepare an application to renew the
    license.[^7] Miller explained that this vendor "did not have
    experience in this type of expired license situation, and the
    preparation of the application document was delayed."[^8] On March
    8, 2007, Miller filed its application for a PLMRS station, which was
    subsequently amended at the request of Commission staff.[^9] Miller
    stated that, due to concerns with the vendor that assisted with its
    March application, it ultimately hired a license specialist.[^10]
    Miller submitted a request for STA on August 16, 2007 and submitted
    an amended application for permanent authority on August 22,
    2007.[^11] WTB granted Miller's STA request on August 28, 2007.[^12]

5.  Miller explained that it failed to file a timely license renewal
    application for station WPIM837 because, due to personnel changes or
    other oversight, the appropriate personnel did not receive the
    notice of renewal.[^13] Miller explained that, since discovering the
    expiration, it took corrective measures including: hiring a new firm
    to review all Commission-granted licenses, designating staff members
    to monitor the licenses, and retaining an outside vendor as an
    additional check on licensing matters.[^14] Miller admitted that it
    operated the station beyond the license expiration date without
    Commission authorization.[^15] Specifically, Miller stated that it
    continuously operated station WPIM837 from the expiration of its
    license on October 12, 2005 until the grant of STA to operate under
    call sign WQHL302 on August 28, 2007, a period of twenty-two
    months.[^16]

#  discussion

6.  Section 301 of the Act and Section 1.903(a) of the rules prohibit
    the use or operation of any apparatus for the transmission of energy
    or communications or signals by a wireless radio station except
    under, and in accordance with, a Commission granted
    authorization.[^17] Additionally, Section 1.949(a) of the rules
    requires that licensees file renewal applications for wireless radio
    stations, "no later than the expiration date of the authorization
    for which renewal is sought, and no sooner than 90 days prior to
    expiration."[^18] Absent a timely filed renewal application, a
    wireless radio station license automatically terminates.[^19]

7.  As a Commission licensee, Miller was required to maintain its
    authorization in order to operate its PLMRS station. Miller admitted
    that it operated the PLMRS station without Commission authority from
    the station's license expiration date of October 12, 2005 until
    August 28, 2007.[^20] By operating its PLMRS station for
    approximately 22 months without Commission authorization, Miller
    apparently violated Section 301 of the Act and Section 1.903(a) of
    the rules. Miller also acted in apparent violation of Section
    1.949(a) of the rules by failing to file a timely renewal
    application for the station.

8.  Section 503(b) of the Act,[^21] and Section 1.80(a) of the
    rules,[^22] provide that any person who willfully or repeatedly
    fails to comply with the provisions of the Act or the rules shall be
    liable for a forfeiture penalty. For purposes of Section 503(b) of
    the Act, the term "willful" means that the violator knew that it was
    taking the action in question, irrespective of any intent to violate
    the Commission's rules, and "repeatedly" means more than once.[^23]
    Based upon the record before us, it appears that Miller's violations
    of Section 301 of the Act and Sections 1.903(a) and 1.949(a) of the
    rules were willful and repeated.

9.  In determining the appropriate forfeiture amount, Section
    503(b)(2)(E) of the Act directs us to consider factors, such as "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."[^24] Having considered the statutory factors, as
    explained below, we propose a total forfeiture of \$6,500.

10. Section 1.80(b) of the rules sets a base forfeiture amount of ten
    thousand dollars (\$10,000) for operation of a station without
    Commission authority and three thousand dollars (\$3,000) for
    failure to file required forms or information.[^25] The Commission
    has held that a licensee's failure to timely file a renewal
    application and its continued operations without authorization
    constitute separate violations of the Act and the rules and warrant
    the assessment of separate forfeitures.[^26] Accordingly, we herein
    propose separate forfeiture amounts for Miller's separate
    violations.

11. We propose a forfeiture amount of five thousand dollars (\$5,000)
    for Miller's continued operation of its PLMRS station prior to the
    grant of STA on August 28, 2007.[^27] In proposing this amount for
    Miller's unauthorized operations, we recognize that the Commission
    considers a licensee who operates a station with an expired license
    in better stead than a pirate broadcaster who lacks prior authority,
    and thus downwardly adjust the \$10,000 base forfeiture amount
    accordingly.[^28] Consistent with precedent, the proposed \$5,000
    forfeiture takes into account that Miller's unauthorized operations
    spanned twenty-two months from the license's expiration date.[^29]
    Additionally, we propose a forfeiture amount of one thousand five
    hundred dollars (\$1,500) for Miller's failure to file the renewal
    application for its PLMRS station within the time period specified
    in Section 1.949(a) of the rules.[^30] Thus, we propose an aggregate
    forfeiture of \$6,500.

12. The \$6,500 base forfeiture amount is not subject to downward
    adjustment for good faith or voluntary disclosure. Although Miller
    attempted corrective measures prior to any Commission inquiry or
    initiation of enforcement action, the company failed to act swiftly.
    Miller waited nearly three months after filing its initial March
    2007 application for a license, and five months after discovery of
    the violations, before it voluntarily disclosed its unauthorized
    operation of the station to Commission personnel.[^31] Moreover,
    Miller did not submit a request for STA to continue operating until
    approximately seven months after discovering that its license had
    expired. As a Commission licensee, Miller is charged with the
    responsibility of knowing and complying with the terms of its
    authorization, the Act, and the rules, including the requirement to
    timely renew the authorization for its PLMRS station.[^32] Under the
    circumstances, and consistent with precedent,[^33] we find that no
    reduction of the proposed forfeiture is warranted.

#  ORDERING CLAUSES

13. Accordingly, **IT IS ORDERED** that, pursuant to pursuant to Section
    503(b) of the Act[^34] and Sections 0.111, 0.311 and 1.80 of the
    rules,[^35] Miller **IS** hereby **NOTIFIED** of its **APPARENT
    LIABILITY FOR A FORFEITURE** in the amount of six thousand five
    hundred dollars (\$6,500) for the willful and repeated violation of
    Section 301 of the Act and Sections 1.903(a) and 1.949(a) of the
    rules.

14. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    rules,[^36] within thirty days of the release date of this *Notice
    of Apparent Liability for Forfeiture*, Miller **SHALL PAY** the full
    amount of the proposed forfeiture or **SHALL FILE** a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

15. 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. A request for full payment under an installment
    plan should be sent to: Associate Managing Director-Financial
    Operations, 445 12^th^ Street, S.W., Room 1-A625, Washington, D.C.
    20554.[^37]

16. The response, if any, must be mailed to the Office of the Secretary,
    Federal Communications Commission, 445 12th Street, S.W.,
    Washington, D.C. 20554, ATTN: Enforcement Bureau -- Spectrum
    Enforcement Division, and must include the NAL/Acct. No. referenced
    in the caption.

17. 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; 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.

18. **IT IS FURTHER ORDERED** that a copy of this *Notice of Apparent
    Liability for Forfeiture* shall be sent by first class mail and
    certified mail return receipt requested to Michelle W. Cohen,
    Counsel to Miller Products Company, Thomson Hine LLP, 1920 N.
    Street, N.W., Washington, D.C. 20036-1600.

**FEDERAL COMMUNICATIONS COMMISSION**

Kathryn S. Berthot

Chief, Spectrum Enforcement Division

> Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: 47 C.F.R. §§ 1.903(a) and 1.949(a).

[^3]: *See* File No. 0003140158. The STA was granted for a six-month
    period and expires February 24, 2008.

[^4]: *See* Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
    Division, Enforcement Bureau, Federal Communications Commission to
    Mark Koch, Miller Breweries East, Inc. (October 18, 2007).

[^5]: *See* Letter from Michelle W. Cohen, Counsel to Miller Products
    Company, to Kevin M. Pittman, Attorney, Spectrum Enforcement
    Division, Enforcement Bureau, Federal Communications Commission
    (November 16, 2007) ("Response"). The Response includes the
    declaration of Michael T. Jones, Vice President and Secretary,
    Miller Breweries East, Inc.

[^6]: *Id.* at 2.

[^7]: *Id.*

[^8]: *Id.*

[^9]: *Id.* After submission of its initial application in March, Miller
    specifically apprised Commission personnel of the expiration of its
    license and informally requested STA to continue operation of the
    station. *See* Letter of Mark Koch, Miller Breweries East, Inc., to
    Federal Communications Commission, Gettysburg, Pennsylvania (June
    14, 2007).

[^10]: Response at 2.

[^11]: *See* File Nos. 0002940300 and 0003140158, respectively.

[^12]: *See* File No. 0003140158.

[^13]: Response at 2.

[^14]: *Id.* at 3.

[^15]: *Id.*

[^16]: *Id.*

[^17]: 47 U.S.C. § 301; 47 C.F.R. § 1.903(a).

[^18]: 47 C.F.R. § 1.949(a).

[^19]: 47 C.F.R. § 1.955(a)(1).

[^20]: Response at 3.

[^21]: 47 U.S.C. § 503(b).

[^22]: 47 C.F.R. § 1.80(a).

[^23]: *See Southern California Broadcasting Co*., Memorandum Opinion
    and Order, 6 FCC Rcd 4387 (1991), *recon. denied*, 7 FCC Rcd 3454
    (1992).

[^24]: 47 U.S.C. § 503(b)(2)(E). *See also* 47 C.F.R. § 1.80(b)(4), Note
    to paragraph (b)(4): Section II. Adjustment Criteria for Section 503
    Forfeitures; *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, Report and Order, 12 FCC Rcd 17087, 17110 (1997),
    *recon. denied*, 15 FCC Rcd 303 (1999).

[^25]: 47 C.F.R. 1.80(b).

[^26]: *See Discussion Radio, Inc.,* Memorandum Opinion and Order and
    Notice of Apparent Liability, 19 FCC Rcd 7433, 7438 (2004)
    ("*Discussion Radio*") (proposing forfeitures of \$5,000 and \$1,500
    against a broadcaster who operated its station for 14 months without
    Commission authority and failed to timely file its renewal
    application).

[^27]: Section 503(b)(6) of the Act, 47 U.S.C. § 503(b)(6), prohibits
    assessment of a forfeiture for a violation that occurred more than
    one year before the issuance of a NAL, but this section does not bar
    consideration of prior conduct in determining the appropriate
    forfeiture amount for violations that occurred within the one-year
    statutory period. *See Globcom, Inc. d/b/a Globcom Global
    Communications,* Notice of Apparent Liability for Forfeiture and
    Order, 18 FCC Rcd 19893, 19903 (2003), *forfeiture ordered,* 21 FCC
    Rcd 4710 (2006); *Roadrunner Transportation, Inc.,* Forfeiture
    Order, 15 FCC Rcd 9669, 9671-72 (2000); *Cate Communications Corp.*,
    Memorandum Opinion and Order, 60 RR 2d 1386, 1388 (1986); *Eastern
    Broadcasting Corp.,* Memorandum Opinion and Order, 10 FCC 2d 37,
    37-38 (1967), *recon. denied,* 11 FCC Rcd 193 (1967).

[^28]: *See Discussion Radio,* 19 FCC Rcd at 7438; *see also Yellow Cab
    Leasing Inc., Canton, Ohio*, Notice of Apparent Liability for
    Forfeiture, 22 FCC Rcd 12719, 12722 (Enf. Bur., Spectrum Enf. Div.,
    2007) ("*Yellow Cab*"), *forfeiture ordered,* 22 FCC Rcd 19871
    (2007); *Imperial Sugar Co.*, Notice of Apparent Liability for
    Forfeiture, 22 FCC Rcd 4987 (Enf. Bur., Spectrum Enf. Div., 2007),
    *forfeiture ordered*, 22 FCC Rcd 17346 (Enf. Bur., Spectrum Enf.
    Div., 2007) ("*Imperial Sugar*").

[^29]: *See Discussion Radio,* 19 FCC Rcd at 7438 (proposing a \$5,000
    forfeiture for operating a station for 14 months beyond the
    expiration of its license); *Yellow Cab*, 22 FCC Rcd at 12722
    (proposing a \$5,000 forfeiture for operating a station for 3½ years
    beyond the expiration of its license); *Imperial Sugar*, 22 FCC Rcd
    at 4990 (proposing a \$5,000 forfeiture for operating a station 1½
    years beyond the expiration of its license).

[^30]: *See Discussion Radio,* 19 FCC Rcd at 7437-38 (proposing a
    \$1,500 forfeiture for failure to file a timely renewal); *Hare
    Planting Co., Inc.*, Notice of Apparent Liability for Forfeiture, 21
    FCC Rcd 13517, 13519 (Enf. Bur., Spectrum Enf. Div., 2006)
    (proposing a \$1,500 forfeiture for failure to file a timely
    renewal), *forfeiture ordered*, 22 FCC Rcd 7530 (Enf. Bur., Spectrum
    Enf. Div., 2007); *Imperial Sugar*, 22 FCC Rcd at 4988 (proposing a
    \$1,500 forfeiture for failure to file a timely renewal for PMLRS
    station).

[^31]: *See* Letter of Mark Koch, Miller Breweries East, Inc., to
    Federal Communications Commission, Gettysburg, Pennsylvania (June
    14, 2007).

[^32]: *See Discussion Radio*, 19 FCC Rcd at 7437; *see also* *Gilmore
    Broadcasting Corp.*, Notice of Apparent Liability for Forfeiture, 21
    FCC Rcd 6284, 6286-87 (Enf. Bur., Spectrum Enf. Div., 2006);
    *Criswell College,* Notice of Apparent Liability for Forfeiture, 21
    FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf. Div., 2006); *National
    Weather Networks*, Notice of Apparent Liability for Forfeiture, 21
    FCC Rcd 3922, 3926 (Enf. Bur, Spectrum Enf. Div., 2006); *Journal
    Broadcast Corp.,* Notice of Apparent Liability for Forfeiture, 20
    FCC Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div., 2005); *Shared
    Data Networks*, Notice of Apparent Liability for Forfeiture, 20 FCC
    Rcd 18184, 18187-88 (Enf. Bur., Spectrum Enf. Bur., 2005).

[^33]: *See Mitchell Electric Membership Cooperative*, Notice of
    Apparent Liability for Forfeiture, 22 FCC Rcd 5538, 5541 (Enf. Bur.,
    Spectrum Enf. Div., 2006) (finding that a downward adjustment was
    unwarranted where the violator waited six months after becoming
    aware of the violation to notify Commission staff and seek authority
    to operate the station); *American Paging Inc.*, Memorandum Opinion
    and Order, 12 FCC Rcd 10417, 10420 (Wireless Telecommunications
    Bureau, Enf. and Consumer Info. Div., 1997) (finding that a downward
    adjustment for voluntary disclosure was unwarranted where the
    violator did not reveal its violation until approximately one month
    after having various conversations with Commission staff regarding
    an STA and that a downward adjustment for good faith attempts to
    comply was unwarranted where the violator continued to operate the
    station without authorization after its STA request was denied).

[^34]: 47 U.S.C. § 503(b).

[^35]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^36]: 47 C.F.R. § 1.80.

[^37]: *See* 47 C.F.R. § 1.1914.