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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Notice of Apparent Liability for Forfeiture of) ) TeleBEEPER of New Mexico, INC. ) ) File No. 920EF0002 Licensee of Paging and Radiotelephone) Station KNLT319, Abilene, Texas) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: October 15, 1998 Released: October 16, 1998 By the Acting Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. This is a Notice of Apparent Liability for Forfeiture, pursuant to Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, against TeleBEEPER of New Mexico, Inc. ("TeleBEEPER"), licensee of Paging and Radiotelephone Station KNLT319, in Abilene, Texas. For the reasons that follow, we find that TeleBEEPER failed to timely notify the Commission of the commencement of service for Station KNLT319, in apparent violation of Section 22.142 of the Commission's Rules, 47 C.F.R. 22.142(b). We conclude that TeleBEEPER is apparently liable for a forfeiture in the amount of one thousand dollars ($1,000). II. Background 2. On May 14, 1996, the Commission authorized TeleBEEPER to construct Station KNLT319 in Abilene, Texas, to operate on frequency 931.3875 MHz. The information TeleBEEPER provided us states that TeleBEEPER completed construction by the expiration of the authorization on May 14, 1997. TeleBEEPER filed an FCC Form 489 notifying the Commission of the commencement of service on frequency 931.3875 MHz on October 16, 1997. 3. Section 22.142(b) of the Commission's Rules provides in pertinent part: "Notification Requirement. Licensees must notify the FCC (FCC Form 489) of commencement of service to subscribers, no later than fifteen days after service begins." 47 C.F.R.  22.142(b). The Commission's policy of imposing monetary forfeitures for violation of Section 22.142(b) of the Commission's Rules is well established. See Network Services, LLC, 13 FCC Rcd 6688 (1998). III. Discussion 4. Having completed construction and begun service by May 14, 1997, TeleBEEPER was required under Section 22.142(b) to notify the Commission within 15 days of commencement of service. TeleBEEPER, however, did not file its Form 489 so notifying the Commission until October 16, 1997. Because TeleBEEPER failed to timely file an FCC Form 489, it appears to have violated Section 22.142(b) of the Commission's Rules. 5. In TeleBEEPER's response, it requested a waiver of Section 22.142(b) of the Commission's Rules. According to Section 22.119(a) of the Commission's Rules, 47 C.F.R. 22.119(a), the Commission may grant such a waiver if (1) The underlying purpose of the rules(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (2) In view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or that the applicant has no reasonable alternative. TeleBEEPER has not met its burden. TeleBEEPER's argument that it filed the Form 489 late because of differing requirements of Parts 22 and 90 of the Commission's Rules and its inadvertent oversight does not meet any of the requirements of 22.119(a). As a Commission licensee, TeleBEEPER has an affirmative obligation to be informed and comply with the Commission's Rules. See J.B.Communications of Baltimore, Ltd., 31 RR 2d 1145 (1974). The purpose of the Form 489 is to notify the Commission that construction has been completed, and the frequency is in use, so that the Commission will not assign that frequency to anyone else. FCC Form 489, therefore, has an important function. 6. The guidelines contained in the Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, specify a base forfeiture amount of $3,000 for failure to file required forms or information. The guidelines, however, permit the Commission "to issue a higher or lower forfeiture than provided in the guidelines." The Commission determined, in cases decided before the recent adoption of the Forfeiture Policy Statement, that a base forfeiture amount of $2,000 is justified when a licensee has failed to timely file Form 489. See Mountaineer Paging, 12 FCC Rcd 4727 (1997). We find, therefore, that a $2,000 base amount for the violation is appropriate here. However, in view of TeleBEEPER's voluntary disclosure of its violation to the Commission, we reduce the amount of proposed forfeiture to $1,000. IV. Conclusion and Ordering Clauses 7. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b) and Section 1.80 of the Commission's Rules, 47 C.F.R. 1.80, TeleBEEPER of New Mexico, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand dollars for repeatedly violating Section 22.142(b) of the Commission's Rules, 47 C.F.R.  22.142(b), and its request for a waiver of Section 22.142(b) of the Commission's Rules, 47 C.F.R.  22.142(b), is hereby DENIED. 8. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, 47 C.F.R. 1.80, that within thirty days of the release of this Notice, TeleBEEPER of New Mexico SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. Payment of the forfeiture may be made by credit card through the Commission's Billings and Collections Branch at (202) 418-1995 or by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should note the file number of this proceeding. Alternatively, TeleBEEPER may choose to submit a written statement seeking reduction or cancellation of the proposed monetary forfeiture. 10. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/ Return Receipt Requested, to TeleBEEPER of New Mexico, Inc. at P.O. Box 25161, Albuquerque, New Mexico 87125, and to Joyce & Jacobs, Attorneys at Law, LLP, at 1019 19th Street, N.W., 14th Floor, Washington, D.C. 20036. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Acting Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau