FCC ENFORCEMENT BUREAU REJECTS STATUTE OF LIMITATIONS ARGUMENT AND IMPOSES FORFEITURE FOR LIMITED OPERATION OF UNAUTHORIZED STATION
In an order released January 29, the FCC’s Enforcement Bureau imposed a $10,000 forfeiture on Lubbock Aero for operating without a license on 123.300 MHz which is available to aviation support stations despite not identifying any specific operation within the limitations period. Lubbock Aero, a fixed-base operator offering aeronautical services at Lubbock Preston Smith International Airport in Lubbock, Texas, actively provided flight training, but it never held a license to use the frequency. Lubbock Aero unsuccessfully challenged the March 25, 2010, notice of apparent liability (“NAL”) that preceded the order on several grounds, most notably contending that the Bureau could not demonstrate operation of the unauthorized station within the one-year statute of limitations, meaning between March 25 and April 1, 2009.
Notably, the Bureau found that, prior to responding to the NAL, Lubbock Aero had not provided the specific date prior to April 1, 2009, when it last operated the radio station. Yet in its response to the NAL, Lubbock Aero argued a forfeiture was inappropriate because the operation during the seven-day period falling within the statute of limitations – April 1, 2009, being “the date of Lubbock Aero’s last broadcast activity on the frequency,” according to the company – was “’infrequent,’ typically lasting no more than 30 seconds, and without (to its knowledge) complaint of any interference.” The Bureau considered this description of brief, infrequent communications enough of an admission that there had been unauthorized operation within the last few days of the limitations period to warrant a forfeiture; the Bureau separately noted that circumstances made it “highly unlikely” that Lubbock Aero did not engage in operations on the frequency during the seven days after March 25, 2009. In short, the Bureau found that the preponderance of the evidence warranted a finding that there had been unauthorized operations after March 25, 2009, even though no specific transmission was identified. The Bureau emphasized that any unauthorized operation “is a serious violation” regardless of frequency or duration, explaining that, once it concluded it was more probable than not that there had been unauthorized operations, it could have adjusted the base forfeiture upward for unauthorized operations that occurred outside the limitations period.
The Bureau’s order is also noteworthy in two other respects. It reminds operators that, in enforcement proceedings, the Bureau does not consider absence of interference a mitigating factor or a basis for cancellation of a proposed forfeiture. (Indeed, interference is a violation separate from unauthorized operation.) In the case at hand, the Bureau did remark on, but did not describe as being of decisional importance, the potential for interference with authorized operations at 123.300 MHz, which is reserved for “aviation support stations used for pilot training, coordination of lighter-than-air aircraft operations, or coordination of soaring or free ballooning activities.” (The order is not entirely clear, but Lubbock Aero’s operations may have been consistent with these purposes.) Further, the Bureau suggests that fines for unauthorized operations by past license holders whose authorizations have expired will not be any less severe than those applicable to persons who operate without ever having a license, other factors meriting adjustment otherwise being the same, thereby providing a reminder to licensees to renew in a timely fashion.