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 Federal  Communications  Commission 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 

 Anderson  Desk  Company  San  Diego,  California 
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 File  Number:  EB-  05-  SD-  031 
 NAL/  Acct.  No:  200532940002 
 FRN:  0009-  9808-  55 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Released:  September  28,  2005 

 By  the  District  Director,  San  Diego  Office,  Western  Region,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  ("  NAL"),  we  find  that  Anderson  Desk  Company  ("  Anderson"),  in  San  Diego,  California,  apparently  willfully  and  repeatedly  violated  Section  301 

 of  the  Communications  Act  of  1934,  as  amended  (  Act),  1  by  operating  an  unlicensed  microwave  radio  station  on  microwave  channels  21225.0  MHz  and  22461.25  MHz.  2  We  conclude,  pursuant  to  Section 
 503(  b)  of  the  Act,  3  that  Anderson  is  apparently  liable  for  a  forfeiture  in  the  amount  of  ten  thousand  dollars  ($  10,000). 

 II.  BACKGROUND 
 2.  On  February  4,  2005,  an  agent  from  the  Commissions  San  Diego  Office  was  investigating  allegations  that  companies  in  the  Otay  Mesa  area  of  San  Diego  were  using  unauthorized 

 microwave  radio  stations  to  communicate  with  sister  companies  across  the  U.  S.    Mexico  border  in  Tijuana,  Mexico.  The  agent  monitored  and  measured  the  transmissions  of  a  microwave  radio  station 
 operated  at  an  office  occupied  by  Anderson  Desk  Company,  a  manufacturer  of  office  furniture,  at  7510  Airway  Road,  San  Diego,  California.  The  frequency  measurement  of  this  microwave  radio  station  was 
 21224.0  MHz. 
 3.  A  review  of  the  Commissions  database  revealed  that  Anderson  has  no  authorization  to  operate  a  point-  to-  point  microwave  radio  station.  However,  a  pending  application,  filed  by  Anderson  on 
 September  23,  2004,  for  frequency  22461.25  MHz  at  the  7510  Airway  Road  location  was  found.  4 
 1  47  U.  S.  C.    301. 
 2  47  C.  F.  R.    101.147(  s). 
 3  47  U.  S.  C.    503(  b). 
 4  See  File  No.  0000281783.  Pursuant  to  Sections  101.  31(  b)(  1)  and  101.  31(  b)(  1)(  v)  of  the  Rules,  47  C.  F.  R.   
 101.  31(  b)(  1),  101.31(  b)(  1)(  v),  certain  applicants  for  point-  to-  point  microwave  stations,  not  located  within  56.  3  (continued....) 
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 4.  The  San  Diego  agent  returned  to  the  Anderson  office  on  February  9,  2005,  and  again  made  measurements  showing  that  the  microwave  radio  station  was  operating  on  the  microwave  channel 
 21225.0  MHz.  5  An  inspection  was  attempted,  but  no  one  was  available  to  make  the  station  available  for  inspection  at  that  time. 

 5.  On  February  28,  2005,  the  San  Diego  agent  returned  to  the  Anderson  office  and  again  measured  the  microwave  radio  station  operating  on  microwave  channel  21225.0  MHz.  At  this  time  the 
 agent  conducted  an  inspection  of  the  radio  station  with  an  Anderson  staff  member.  The  agent  requested  a  copy  of  Andersons  station  authorization  for  its  microwave  radio  station,  but  only  a  copy  of  the 
 September  23,  2004,  pending  application  could  be  found  at  the  Anderson  office. 
 6.  On  March  11,  2005,  the  San  Diego  Office  sent  a  Letter  of  Inquiry  (  LOI)  to  Anderson  concerning  its  operation  on  an  unauthorized  frequency  of  21224.0  MHz,  in  violation  of  Section  301  of  the 
 Act.  6  The  San  Diego  Office  received  a  reply  to  the  LOI  on  March  23,  2005.  In  its  reply,  Anderson  states  that  this  radio  station  was  used  for  internal  business  communications  between  Andersons  U.  S  and 
 Mexican  facilities.  Anderson  acknowledges  that  it  began  operating  this  microwave  radio  station  in  2000  on  frequency  22461.25  MHz  and  had  replaced  some  defective  equipment  in  December  2004.  At  that 
 time,  frequency  21224.0  MHz  was  installed.  Anderson  further  states  that  the  repaired  unit  is  now  back  in  service  and  that  the  operation  frequency  is  22461.25.  Anderson  also  acknowledged  that  its  pending 
 application  for  authority  to  operate  on  22461.25  MHz  had  not  yet  been  granted. 
 7.  On  May  20,  2005,  Andersons  pending  application  was  granted  under  the  call  sign  of  WQCT534  for  frequency  22461.  25  MHz.  However,  the  licensed  geographical  coordinates  for  WQCT534 
 do  not  match  the  coordinates  of  the  actual  transmitter  location  of  7510  Airway  Road,  San  Diego,  California.  The  difference  between  the  two  locations  is  approximately  3.95  km. 

 III.  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)  of  the  Act  has  been 
 interpreted  to  mean  simply  that  the  acts  or  omissions  are  committed  knowingly.  7  The  term  repeated  means  the  commission  or  omission  of  such  act  more  than  once  or  for  more  than  one  day.  8 

 (...  continued  from  previous  page)  kilometers  of  any  international  border,  operating  in  certain  frequency  bands,  are  deemed  to  have  conditional 
 authority  to  operate  their  proposed  stations  during  the  pendency  of  their  applications.  The  frequency  proposed  for  use  by  Anderson  Desk  in  its  application  is  not  contained  in  these  frequency  bands.  Also,  Anderson  Desks  proposed 
 station  is  located  approximately  1.  5  km  from  the  Mexican  border.  5 
 The  actual  measurement  made  by  the  agent  showed  that  the  station  was  operating  on  21224.0  MHz.  6 
 21224.0  MHz  is  within  the  maximum  allowable  tolerance  of  microwave  channel  21225.0  MHz.  See  47  C.  F.  R.    101.147(  s). 

 7  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). 
 8  Section  312(  f)(  2)  of  the  Act,  47  U.  S.  C.    312(  f)(  2),  which  also  applies  to  violations  for  which  forfeitures  are 
 (continued....) 
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 9.  Section  301  of  the  Act  requires  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  February  4,  2005,  February  9,  2005,  and  February  28,  2005,  measurements  made  by  a  San  Diego  agent  revealed  that  Anderson  was  operating  a  microwave  radio 
 station  on  the  frequency  21224.0  MHz.  A  review  of  Commission  records  indicated  that  Anderson  had  no  authorization  to  operate  on  21224.0  MHz.  The  review  also  indicated  that  Anderson  had  a  pending 
 application,  but  no  authorization,  to  operate  on  22461.25  MHz.  On  March  23,  2005,  Anderson  acknowledged  operating  a  microwave  station  on  the  frequencies  of  22461.25  MHz  and  21224.0  MHz 
 since  2000.  Anderson  also  acknowledged  that  it  had  no  license,  only  a  pending  application,  to  operate  such  a  station. 

 10.  Anderson  was  aware  licensing  for  its  station  was  required,  as  evidenced  by  its  license  application,  and  admits  that  its  microwave  radio  station  has  been  operating  on  either  22461.25  or  21224.0 
 MHz  since  it  was  first  installed  in  2000.  Therefore,  Andersons  violation  was  willful.  The  violation  occurred  on  more  than  one  day,  therefore,  it  was  repeated.  Based  on  the  evidence  before  us,  we  find  that 
 Anderson  apparently  willfully  and  repeatedly  violated  Section  301  of  the  Act  by  operating  a  microwave  radio  station  without  authorization. 

 11.  Pursuant  to  The  Commissions  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  without  an  instrument  of  authorization  for  the  service  is  $10,000.  9  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  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.  10  Applying  the  Forfeiture  Policy  Statement,  Section  1.80,  and  the  statutory  factors,  we  conclude  that  Anderson  is  apparently  liable  for  a  forfeiture  in  the  amount 
 of  $10,000. 
 12.  We  will  also  require  Anderson  to  file  a  report  with  the  District  Director  of  the  San  Diego  Office  concerning  Andersons  efforts  to  bring  its  microwave  radio  station  into  compliance  with  the  terms  of 
 its  authorization  for  station  WQCT534.  Specifically,  Anderson  must  detail  how  it  has  relocated  its  transmitter  to  the  coordinates  specified  in  the  station  authorization,  or  how  it  has  amended  its 
 authorization  to  accurately  reflect  the  location  of  the  transmitter. 

 IV.  ORDERING  CLAUSES 
 13.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  Sections  0.111,  0.311  and  1.80  of  the  Commission's  Rules,  Anderson  Desk 

 Company  is  hereby  NOTIFIED  of  this  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  ten  thousand  dollars  ($  10,  000)  for  violation  of  Section  301  of  the  Act.  11 

 (...  continued  from  previous  page)  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. 
 9  12  FCC  Rcd  17087  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999);  47  C.  F.  R.  1.  80. 
 10  47  U.  S.  C.    503(  b)(  2)(  D). 
 11  47  U.  S.  C.    301,  503(  b),  47  C.  F.  R.    0.111,  0.311,  1.80. 
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 14.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  1.80  of  the  Commission's  Rules,  within  thirty  (30)  days  of  the  release  date  of  this  Notice  of  Apparent  Liability  for  Forfeiture,  Anderson  Desk 
 Company  SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 

 15.  IT  IS  FURTHER  ORDERED  that  Anderson  Desk  Company  SHALL  FILE,  within  thirty  (30)  days  of  the  release  of  this  Notice,  a  report  with  the  District  Director,  San  Diego  Office,  concerning 
 Anderson  Desk  Companys  efforts  to  come  into  compliance  with  the  authorization  for  station  WQCT534,  as  detailed  above. 

 16.  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. 
 17.  The  response,  if  any,  must  be  mailed  to  Federal  Communications  Commission,  Enforcement  Bureau,  Western  Region,  San  Diego  Office,  4542  Ruffner  Street,  Suite  370,  San  Diego, 
 California  92111,  within  thirty  (30)  days  from  the  release  date  of  this  Notice  of  Apparent  Liability  for  Forfeiture  and  must  include  the  NAL/  Acct.  No.  referenced  in  the  caption. 

 18.  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  petitioners  current  financial 
 status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 

 19.  Requests  for  payment  of  the  full  amount  of  this  Notice  of  Apparent  Liability  for  Forfeiture  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Operations  Group,  445  12th 
 Street,  S.  W.,  Washington,  D.  C.  20554.  12 
 20.  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  Anderson  Desk 
 Company  at  its  address  of  record. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 William  R.  Zears,  Jr.  District  Director 
 San  Diego  Office  Western  Region 
 Enforcement  Bureau 

 12  See  47  C.  F.  R.    1.1914. 
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