******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) EDWIN W. GANTZ ) ) File No. 920EF0024 Licensee of Paging and Radiotelephone Stations KNLV501, ) KNLV510, and KNLU931, Carlsbad, New Mexico; ) Tuba City, Arizona; Panama City and Key West, Florida ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: April 14, 1999 Released: April 15, 1999 By the 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"), and Section 1.80 of the Commission's Rules, against Edwin W. Gantz ("Mr. Gantz"), licensee of Paging and Radiotelephone Stations KNLV501 and KNLV510 in Tuba City, Arizona and Carlsbad, New Mexico; and KNLU931 in Panama City and Key West, Florida. As discussed below, we find that Mr. Gantz failed to timely notify the Commission of the commencement of service of Stations KNLV501, KNLV510, and KNLU931 in apparent violation of Section 22.142(b) of the Commission's Rules. We conclude that Mr. Gantz is apparently liable for a forfeiture in the amount of eight thousand dollars ($8,000). II. Background 2. The Commission authorized Mr. Gantz to construct Stations KNLV501, KNLV510, and KNLU931 at the locations and frequencies on the dates listed below: (a) at Tuba City, for frequency 931.0875 MHz, Station KNLV501, on March 19, 1997; (b) at Carlsbad, for frequency 931.2125 MHz, Station KNLV510, on March 19, 1997; (c) at Panama City, for frequency 931.1125 MHz on Station KNLU931, on March 12, 1997, (d) and at Key West, for frequency 931.7125 MHz on Station KNLU931 on March 12, 1997. The authorization required that he complete construction and commence service within one year of the date of the authorization. On April 21, 1998, Mr. Gantz filed four FCC Forms 489 whereby he notified the Commission that he had timely completed construction of, and commenced service from, Stations KNLV501, KNLV510, KNLU931 at all four locations on all four frequencies. He did not provide a specific date on which service actually commenced. III. Discussion 3. Section 22.142(b) of the Commission's Rules provided in pertinent part: "Notification Requirement. Licensees must notify the FCC (using FCC Form 489) of commencement of service to subscribers . . . no later than fifteen days after service begins." 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. The Bureau's policy of imposing monetary forfeitures for willful and/or repeated violation of Section 22.142(b) of the Commission's Rules is well established. 4. Pursuant to Section 22.142(b), Mr. Gantz was required to notify the Commission that he had completed construction and commenced service by filing an FCC Form 489 within 15 days of commencement of service. Mr. Gantz, however, did not file any Forms 489 to cover the commencement of service of Stations KNLV501, KNLV510, KNLU931, at the locations and frequencies listed above until April 21, 1998. Mr. Gantz admits that it did not timely file any FCC Forms 489 for these stations due to administrative oversight. 5. In Mr. Gantz' response, he requested a waiver of Section 22.142(b) of the Commission's Rules. According to Section 1.925(b)(3) of the Commission's Rules, the Commission may grant such a waiver if: (i) The underlying purpose of the rule(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 (ii) 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 the applicant has no reasonable alternative. Mr. Gantz has not met his burden. Mr. Gantz' argument that he filed the FCC Forms 489 late because of an inadvertent oversight does not meet any of the requirements of Section 1.925(b)(3) of the Commission's Rules. As a Commission licensee, Mr. Gantz has an affirmative obligation to be informed and comply with the Commission's Rules. 6. Based on the information before us, we find that Mr. Gantz failed to timely notify the FCC of the commencement of service of Stations KNLV501, KNLV510, KNLU931, in apparent repeated violation of Section 22.142(b) of the Commission's Rules. 7. The Bureau has determined that a base forfeiture amount of $2,000 for each violation is justified when a licensee has failed to timely file an FCC Form 489. Before a forfeiture amount can be set in each case, however, Section 503(b)(2)(D) of the Act requires the Bureau to consider "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 factors as justice may require." We note that Mr. Gantz was previously assessed a forfeiture for failing to file an FCC Form 489 in a timely manner. In this case, taking these factors into consideration, including, but not limited to, Mr. Gantz' voluntary disclosure of these violations to the Commission, and Mr. Gantz' commission of a similar offense earlier in 1998, we believe it is appropriate to use the base amount of 2,000 for each of the four violations, for a total of $8,000. IV. Conclusion and Ordering Clauses 8. 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, Mr. Gantz is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of eight thousand dollars ($8,000) for repeatedly violating Section 22.142(b) of the Commission's Rules. 9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty days of the release of this Notice, Mr. Edwin W. Gantz SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 10. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/ Return Receipt Requested, to Mr. Edwin W. Gantz, 2670 N.W. Eastway Court, Beaverton, Oregon 97006. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau