# **Before the**

# Federal Communications Commission

# Washington, D.C. 20554

+--------------------------+---+----------------------------+
| In the Matter of         | ) | File Number EB-02-NF-109   |
|                          |   |                            |
| ESI Companies Inc.       | ) | NAL/Acct. No. 200332640003 |
|                          |   |                            |
| 1877 Vanderhorn Drive    | ) | FRN 4245429                |
|                          |   |                            |
| Memphis, Tennessee 38134 | ) |                            |
|                          |   |                            |
|                          | ) |                            |
+--------------------------+---+----------------------------+
|                          |   |                            |
+--------------------------+---+----------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: March 4, 2003

By the Enforcement Bureau, Norfolk Office:

## I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
ESI Companies Inc. ("ESI"), apparently liable for a forfeiture in the
amount of ten thousand dollars (\$10,000) for willful and repeated
violation of Section 301 of the Communications Act of 1934, as amended
("Act").[^1] Specifically, we find ESI apparently liable for the
operation of a radio station on the frequency of 156.8050 MHz without
Commission authorization.

## II. BACKGROUND

II. ** **

2\. On August 14, 2002, the FCC, Enforcement Bureau, Norfolk Office
("Norfolk Office") received a complaint about transmissions that were
hampering the U.S. Coast Guard Auxiliary's ability to monitor for
distress calls from boaters on the marine safety channel at 156.8000
MHz. The complainant said that transmissions emanated from an area south
of Taylorsville, North Carolina, on the frequency of 156.8050 MHz. This
frequency is in a band of frequencies allocated exclusively for maritime
use. The complainant also said that the interfering transmissions were
construction related and that the FCC did not license any station in the
area for use of 156.8050 MHz. The complainant also sent the Norfolk
Office a detailed log of transmissions. That log mentioned the name
"Chris Thompson" during transmissions noted on July 24, 2002. FCC
license databases had no record of a license issued for the use of
156.8050 MHz near Taylorsville, North Carolina.

3\. On August 22, 2002, an agent from the Norfolk Office monitored the
frequency 156.8050 MHz in the Taylorsville, North Carolina area. The
agent observed communications on that frequency related to construction
activities, and also heard the name "Chris" among others. Using
direction finding equipment and investigative techniques, he determined
that these transmissions emanated from a construction site located off
of Old Land Fill Road (SR 1608) south of Taylorsville, North Carolina.
The agent conducted an inspection and interviewed ESI's construction
superintendant. The superintendant stated that ESI employees used a base
station radio and six hand-held radios as part of its construction
business at the site; and that Chris Thompson was an ESI employee. The
agent made frequency measurements of the base station and noted that it
was tuned to 156.8050 MHz. ESI holds licenses for business radio
stations, but it is not authorized to transmit on 156.8050 MHz or any
marine frequency.

4\. On October 21, 2002, in response to questions from the Norfolk
agent, ESI wrote that it used the wrong frequency in Taylorsville, North
Carolina and at possible other locations across the country, but that it
had corrected the violations.

## III. DISCUSSION

5\. Section 301 of the Act sets forth generally that no person shall use
or operate any apparatus for the transmission of energy of
communications or signals by radio within the United States except under
and in accordance with the Act and with a license. On July 24, 2002, and
on August 22, 2002, ESI operated radio-transmitting equipment on the
frequency of 156.8050 MHz without benefit of the required Commission
authorization.

6\. Based on the evidence before us, we find ESI willfully[^2] and
repeatedly[^3] violated Section 301 of the Act by operating radio
transmission apparatus without a license.

7\. Pursuant to Section 1.80(b)(4) of the Rules,[^4] the base forfeiture
amount for operating a station without a license is \$10,000. In
assessing the monetary forfeiture amount, we must also take into account
the statutory factors set forth in Section 503(b)(2)(D) of the Act,
which include 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.[^5] In doing so, we note that ESI previously
operated a station without a license on the frequency of 156.800 MHz
near the East Mesa Detention Facility, San Diego, California. ESI's
unlicensed operation occurred on July 2, 1999. On July 14, 1999, the FCC
San Diego Office issued ESI a warning about unlicensed station
operation. Considering the entire record and applying the factors listed
above, this case warrants a \$10,000 forfeiture.

## IV. ORDERING CLAUSES

8\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^6] and Sections 0.111, 0.311 and 1.80 of the Rules,[^7] ESI is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars (\$10,000) for willful and repeated
violation of Section 301 of the Act by operating radio transmission
apparatus without a license.

9\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this NAL, ESI SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.

10\. Payment of the forfeiture may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C. 20554.[^8]

11\. The response, if any, must be mailed to Federal Communications
Commission, Office of the Secretary, 445 12^th^ Street SW, Washington DC
20554, Attn: Enforcement Bureau-Technical & Public Safety Division and
MUST INCLUDE THE NAL/Acct. No. referenced above.

12\. 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.

13\. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two-year
tracking process regarding the size of entities involved in forfeitures.
If you qualify as a small entity and if you wish to be treated as a
small entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety Division.
Your certification should indicate whether you, including your parent
entity and its subsidiaries, meet one of the definitions set forth in
the list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this Notice of
Apparent Liability. This information will be used for tracking purposes
only. Your response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section 503(b) of
the Communications Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at (202)
418-0990.

14\. IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent by
regular mail and Certified Mail Return Receipt Requested to ESI
Companies Inc., 1877 Vanderhorn Drive, Memphis, TN, 38134.

##### FEDERAL COMMUNICATIONS COMMISSION

Joseph P. Husnay

Resident Agent, Norfolk Office, Enforcement Bureau

Attachment

ESI Companies Inc

1877 Vanderhorn Drive

Memphis TN 38134

ESI Companies Inc

1877 Vanderhorn Drive

Memphis TN 38134

[^1]: § 47 U.S.C. § 301.

[^2]: 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 . .
    . ." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387-88
    (1991).

[^3]: The 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." 47 U.S.C. § 312(f)(2).

[^4]: 47 C.F.R. § 1.80(b)(4).

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^8]: *See* 47 C.F.R. § 1.1914.