On September 28, the FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a California firm that the Commission maintains was using amateur frequencies to conduct business. According to the Commission, Shimmick Construction Company Inc/Obayashi Corporation, Joint Venture ("Shimmick-Obayashi") -- licensees of stations WQER756, WQEN793, WQJI360 and WQKG818 -- apparently repeatedly violated Section 1.903(a) of the Commission's Rules "by failing to operate only in accordance with the rules applicable to their particular service as set forth in the Commission's Rules and with a valid authorization granted by the Commission."

Background

On two separate occasions in May 2009, the FCC's Los Angeles office received complaints that a concrete delivery company was operating numerous mobile stations in Yorba Linda, California, on 146.025 MHz, a frequency allocated exclusively to the Amateur Radio Service.

On May 26, 2009, and agent from the Los Angeles office used radio direction finding techniques to locate transmissions on 146.025 MHz from a construction site in Yorba Linda California; the transmissions were not identified by call sign. "The transmissions monitored by the Los Angeles agent related to mixing and delivery of concrete on the construction site," the NAL stated. "The Los Angeles agent then viewed the construction site and correlated the movement of concrete trucks with associated radio transmissions on 146.025 MHz."

The next day -- May 27 -- the same agent again used radio direction finding techniques to "positively locate" the source of transmissions on 146.025 MHz to the construction site. The Los Angeles agent visited the site and spoke with the Shimmick-Obayashi supervisor of the on-site concrete plant, and according to the NAL, allowed the Los Angeles agent to inspect several of the handheld radios in use at the site. "The Los Angeles agent confirmed that the frequency 146.025 MHz was programmed into frequency selector position #5 on numerous Motorola model CP200 portable transceivers that were being used to coordinate construction operations throughout the site," the NAL stated. "The Shimmick-Obayashi construction supervisor told the Los Angeles agent that he did not know anything about a license for the radios, but that he would immediately stop using the Amateur Radio Service frequency programmed in position #5 on the Motorola CP200 transceivers."

On May 28, the Los Angeles agent researched the Commission's records and determined that the two companies that had formed the joint venture Shimmick-Obayashi -- Shimmick Construction Inc and Obayashi Corporation -- were both Commission licensees. Shimmick Construction, Inc holds Industrial Radio Service licenses WQJI360 and WQKG818 that authorize operations nationwide, including in Yorba Linda, California, but neither of these licenses authorize use of 146.025 MHz. Obayashi Corporation holds Industrial Radio Service licenses WQER756 and WQEN793, but neither of these licenses authorizes use of 146.025 MHz. The research also revealed that the Shimmick-Obayashi joint venture, as an entity, did not hold any Commission licenses.

Actions

Section 503(b) of the Communications Act of 1934, as amended, 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 Communications Act or of any rule, regulation or order issued by the Commission shall be liable for a forfeiture penalty. According to the FCC, the term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly. The term "repeated" means the commission or omission of such act more than once or for more than one day.

Section 1.903(a) of the Commission's Rules requires that stations in the Wireless Radio Services must be used and operated only in accordance with the rules applicable to their particular service, and with a valid authorization granted by the Commission. According to the FCC, on May 26 and 27, 2009, a Los Angeles agent located transmissions from Shimmick-Obayashi on 146.025 MHz emanating from mobile users at a construction site in Yorba Linda, California. At the time of the investigation, neither Shimmick-Obayashi, nor the individual companies that made up the joint venture, was authorized to operate on 146.025 MHz. The violation occurred for more than one day, therefore, it was repeated.

In accordance with The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines and Section 1.80 of the Commission's Rules, the Commission concluded that the base forfeiture amount for use of an unauthorized frequency is $4000. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the Shimmick-Obayashi submits federal tax returns for the most recent three-year period, financial statements prepared according to generally accepted accounting practices or some other reliable and objective documentation that accurately reflects Shimmick-Obayashi's current financial status.

ARRL Official Observers

Although they weren’t mentioned in the NAL, several ARRL Official Observers (OOs) assisted ARRL Orange Section Official Observer Coordinator Dan Welch, W6DFW, in responding to the complaint; local amateurs Richard Clark, N6UZS, and Richard Saunders, K6RBS, did preliminary work, as well. Welch then coordinated the DFing efforts -- aided by Bob Thornburg, WB6JPI -- and the information gathered was passed on to the local FCC office, enabling them to promptly respond to the complaint. Welch told the ARRL that the local FCC office routinely supports the efforts of the Official Observers and the amateur community in resolving this type of complaint, and their follow-up is very much appreciated by them.