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 Federal  Communications  Commission  DA  04-  3912 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Echonet  Corporation 
 Television  Translator  Station  K49AY 
 Cheyenne,  Wyoming 


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 File  No.  EB-  03-  DV-  020 
 NAL/  Acct.  No.  200332800011 
 FRN  0008379216 


 FORFEITURE  ORDER 
 Adopted:  December  17,  2004  Released:  December  21,  2004 
 By  the  Assistant  Chief,  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  Echonet  Corporation  for  repeated  violation  of  Section  301  of  the 


 Communications  Act  of  1934,  as  amended  (  Act).  1  The  noted  violation  involves  Echonets  repeated  operation  of  a  television  broadcast  translator  station  without  Commission  authorization. 


 II.  BACKGROUND 
 2.  On  October  22,  2002,  an  agent  from  the  FCC's  Denver  Office  received  information  that  a  television  translator  was  operating  on  channel  49  in  Cheyenne,  Wyoming,  without  a  valid  FCC  station 


 license.  The  agent  monitored  transmissions  on  channel  49  in  Cheyenne  from  October  22  through  October  24,  2002,  and  observed  retransmitted  broadcast  television  programming  on  the  aural  carrier  frequency  of 
 685.7545  MHz.  On  October  24,  2002,  using  direction  finding  techniques,  the  agent  located  the  station's  transmitter  on  the  top  floor  of  the  Community  First  National  Bank  at  1800  Carey  Avenue  in  Cheyenne, 
 Wyoming.  Evidence  discovered  during  the  inspection  revealed  Echonet  as  the  station  operator.  Review  of  the  FCC's  databases  revealed  that  Echonet  held  a  license  for  K49AY,  Facility  ID  18475,  granted  on 
 July  10,  1986,  for  a  television  translator  at  coordinates  41  08'  04"  north  latitude  and  104  49'  02"  west  longitude.  The  license  for  K49AY  expired  on  October  1,  1998.  Further  review  on  March  26,  2003,  of  the 
 FCC's  databases  revealed  no  current  license  issued  for  a  television  translator  station  to  operate  on  channel  49  in  Cheyenne,  Wyoming,  and  no  pending  application  or  renewal  application  for  channel  49  in 
 Cheyenne,  Wyoming. 
 3.  On  April  3,  2003,  the  Denver  Office  issued  a  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL)  to  Echonet  in  the  amount  of  ten  thousand  dollars  ($  10,000)  for  the  apparent  repeated  violation  of 


 Section  301  of  the  Act.  2  In  its  response,  Echonet  does  not  argue  that  it  held  a  valid  license  at  the  time  the 
 1  47  U.  S.  C.    301. 


 2  Notice  of  Apparent  Liability  for  Forfeiture,  NAL/  Acct.  No.  200332800011  (Enf.  Bur.,  Denver  Office,  April  3, 
 2003). 
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 NAL  was  issued.  Instead,  it  argues  that  the  failure  to  file  a  renewal  application  for  the  translator  was  inadvertent  and  the  result  of  a  mistake  by  individuals,  other  than  Echonet,  involved  in  a  transaction 
 concerning  other  assets  and  stations.  3  Echonet  states  that  its  act  of  operating  the  translator  was  not  a  willful  or  knowing  violation  of  the  Commissions  Rules,  that  it  has  never  been  subject  to  a  forfeiture 
 action  before,  that  it  has  no  other  assets  other  than  the  license  and  the  equipment  related  to  the  license,  and  that  for  the  last  ten  years  the  translator  has  been  used  to  broadcast  public  interest  programming  in 
 Spanish  and  other  programming  not  available  by  broadcast  in  the  community.  For  these  reasons,  Echonet  requests  that  the  forfeiture  be  retracted. 


 III.  DISCUSSION 
 4.  The  proposed  forfeiture  amount  in  this  case  was  assessed  in  accordance  with  Section  503(  b)  of  the  Act,  4  Section  1.80  of  the  Commissions  Rules  (  Rules),  5  and  The  Commissions  Forfeiture 


 Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd  17087  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999)  (  Forfeiture  Policy  Statement).  In 
 examining  Echonets  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 
 5.  Section  301  of  the  Act  states  that  no  person  shall  use  or  operate  any  apparatus  for  the  transmission  of  energy  or  communications  or  signals  by  radio  within  the  United  States  except  under  and 


 in  accordance  with  the  Act  and  with  a  license.  Echonet  does  not  assert  that  it  had  a  valid  license  during  the  more  than  four  year  period  noted  in  the  NAL,  it  only  argues  that  its  failure  to  renew  the  license  was 
 inadvertent  and  was  not  a  willful  or  knowing  violation  of  the  Commissions  Rules.  We  note  that  the  Denver  Office  did  not  find  any  apparent  willful  violation  by  Echonet.  Rather,  it  found  that  Echonet 
 repeatedly  violated  Section  301.  Because  we  find  the  violation  to  be  repeated,  we  need  not  address  Echonets  argument  that  the  violation  was  not  willful.  7 


 6.  Echonet  also  asks  that  we  reconsider  the  forfeiture  pursuant  to  Section  503(  b)(  2)(  D)  of  the  Act  in  the  light  most  favorable  to  Echonet.  8  Taking  these  statutory  factors  into  account,  we  note  that 
 Echonet  had  previously  been  licensed  to  operate  translator  K49AY,  so  this  violation  is  not  comparable  to  pirate  wireless  operations,  which  typically  have  been  subject  to  forfeitures  of  approximately  $10,000.  9 
 In  similar  circumstances,  where  a  licensee  failed  to  file  a  timely  renewal  application  and  was  apparently  operating  without  authorization,  the  Commission  reduced  a  proposed  forfeiture  for  unauthorized 


 3  After  the  release  of  the  NAL,  Echonet  filed  a  renewal  application  with  the  Commission  which  was  accepted  on 
 July  28,  2003,  and  granted  on  October  30,  2003.  See  File  No.  BRTT-  20030707ADV. 
 4  47  U.  S.  C.    503(  b). 


 5  47  C.  F.  R.    1.80. 
 6  47  U.  S.  C.    503(  b)(  2)(  D). 
 7  See  Section  503(  b)(  1)  of  the  Act,  47  U.  S.  C.    503(  b)(  1)  (violator  liable  for  forfeiture  if  violation  is  willful  or 
 repeated). 
 8  47  U.  S.  C.    503(  b)(  2)(  D). 


 9  See,  e.  g.,  Joe  L.  Ford,  d/  b/  a  Ford  Communications,  15  FCC  Rcd  23721  (E.  B.  2000). 
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 operation  to  $5,000.  10  Consequently,  we  reduce  Echonets  forfeiture  amount  to  $5,000. 
 7.  Echonet  also  states  that  it  has  no  assets  other  than  the  license  and  equipment  of  the  station,  however,  it  provides  no  additional  information  or  documentation  supporting  this  statement. 


 Absent  submission  of  supporting  financial  documentation,  we  cannot  assess  a  violators  inability  to  pay  and  we  will  not  reduce  or  cancel  a  forfeiture  on  these  grounds.  11  Finally,  in  support  of  its  request  for 
 reduction,  Echonet  states  that  it  has  never  been  subject  to  a  forfeiture  action.  We  have  reviewed  our  records  and  we  find  no  instances  of  Echonets  having  received  a  forfeiture  or  violation  notice. 
 Consequently,  we  reduce  Echonets  forfeiture  amount  by  an  additional  $1,000. 
 8.  We  have  examined  Echonets  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  Echonet  repeatedly  violated  Section  301  of  the  Act.  Considering  the  entire  record  and  the  factors  listed  above,  we  find  that  reduction  of  the  proposed  forfeiture  is  warranted,  given  the  circumstances 
 surrounding  Echonets  unauthorized  operation  and  its  compliance  record  with  the  Commissions  Rules.  Accordingly,  the  forfeiture  amount  is  reduced  from  ten  thousand  dollars  ($  10,000)  to  four  thousand 
 dollars  ($  4,000). 
 IV.  ORDERING  CLAUSES 
 9.  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(  f)(  4)  of  the  Commissions  Rules,  12  Echonet 


 Corporation  IS  LIABLE  FOR  A  MONETARY  FORFEITURE  in  the  amount  of  four  thousand  dollars  ($  4,000)  for  repeatedly  violating  Section  301  of  the  Act. 


 10.  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.  13  Payment  by  check  or  money  order  may  be  mailed  to  Forfeiture  Collection  Section,  Finance 
 Branch,  Federal  Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482.  Payment  by  overnight  mail  may  be  sent  to  Bank  One/  LB  73482,  525  West  Monroe,  8th  Floor  Mailroom,  Chicago, 
 IL  60661.  Payment  by  wire  transfer  may  be  made  to  ABA  Number  071000013,  receiving  bank  Bank  One,  and  account  number  1165259.  The  payment  should  note  NAL/  Acct.  No.  200332700027,  and  FRN 
 0009232976.  Requests  for  full  payment  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Group,  445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  14 


 10  Discussion  Radio  Incorporated,  19  FCC  Rcd  7433,  7438  (2004).  See,  also,  Gateway  Security  Systems,  Inc., 
 Jamaica,  NY,  (2003  WL  22717864)  (DA  03-  3660)  (EB  2003). 
 11  See  Webnet  Communications,  Inc.,  18  FCC  Rcd  6870  (2003).  We  also  reject  Echonets  contention  that  its 
 unauthorized  operation  caused  no  harm,  but  actually  served  the  public  interest.  See  AGM-  Nevada  LLC,  18  FCC  Rcd  1476,  1478-  1479  (E.  B.  2003)  (concluding  that  the  absence  of  interference  or  any  showing  of  harm  to  the 


 public  interest  does  not  entitle  AGM  to  a  reduction  of  the  proposed  forfeiture). 
 12  47  C.  F.  R.    0.111,  0.311,  1.80(  f)(  4). 


 13  47  U.  S.  C.    504(  a). 
 14  See  47  C.  F.  R.    1.1914. 
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 11.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Order  shall  be  sent  by  First  Class  and  Certified  Mail  Return  Receipt  Requested  to  Echonet  Corporation,  400  Inverness  Parkway,  Suite  250, 
 Englewood,  Colorado,  80112. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 George  R.  Dillon  Assistant  Chief,  Enforcement  Bureau 
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