Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Notice of Apparent Liability for Forfeiture of ) ) DAVE ZAREMBA ) ) File No. 920EF0038 Licensee of Paging and Radiotelephone Service ) Stations KNLN899, Springdale, Arkansas and ) KNLN701, Montgomery, Alabama ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: June 9, 1999 Released: June 10, 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 Mr. Dave Zaremba, licensee of Paging and Radiotelephone Service Stations KNLN899, in Springdale, Arkansas; and KNLN701, in Montgomery, Alabama. As discussed below, we find that Mr. Zaremba failed to timely notify the Commission of the commencement of service of Stations KNLN899 and KNLN701, in apparent violation of Section 22.142(b) of the Commission's Rules. We conclude that Mr. Zaremba is apparently liable for a forfeiture in the amount of six thousand dollars ($6,000). II. Background 2. On January 26, 1996, the Commission authorized Mr. Zaremba to construct Station KNLN899 at Springdale, Arkansas, on frequency 931.2625 MHz. On February 9, 1996, the Commission authorized him to construct Station KNLN701, on the same frequency, 931.2625 MHz, at Montgomery, Alabama. The authorizations required that Mr. Zaremba complete construction and commence service within one year of the date of the authorizations, i.e., January 26, 1997, and February 9, 1997, respectively. 3. On May 21, 1998, the Commission terminated Mr. Zaremba's authorization for Stations KNLN899 and KNLN701 for failure to construct. On June 22, 1998, Mr. Zaremba requested reconsideration of the termination and reinstatement of the two licenses. At the same time, he filed two FCC Forms 489 notifying the Commission that he had timely completed construction of, and commenced service from, the Springdale and Montgomery sites on 931.2625 MHz with minor modifications to each station. As part of the FCC Forms 489, Mr. Zaremba also filed portions of two FCC Forms 600 with engineering statements and technical data to show that the modifications he made to the stations were minor. Mr. Zaremba conceded, however, that he had not notified the Commission in a timely manner, attributed the mistake to clerical oversight, and requested a waiver of Section 22.142(b) of the Commission's Rules. Mr. Zaremba did not provide a specific date on which service actually commenced at either station. On November 12, 1998, the Bureau reinstated the two licenses. III. Discussion 4. Section 22.142(b) of the Commission's Rules provided 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." 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 Commission'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. 5. Pursuant to Section 22.142(b), Mr. Zaremba was required to notify the Commission that the construction of each of the two Stations was finished and service had commenced by filing an FCC Form 489 within 15 days of the commencement of service. Mr. Zaremba, however, did not file any FCC Forms 489 notifying the Commission of his completion of construction and commencement of service of Stations KNLN899 and KNLN701 until June 22, 1998, more than sixteen months (at minimum) after the deadline for doing so for both stations. Mr. Zaremba admits that he did not timely file any FCC forms 489 for these stations due to clerical errors. The Commission has stated, however, that its licensees have an affirmative obligation to be informed and comply with the Commission's Rules. Consequently, we find no basis for excusing Mr. Zaremba's apparent violation of Section 22.142(b) of the Commission's Rules. 6. In connection with the filing of his FCC Form 489, Mr. Zaremba 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. Zaremba has not met his burden. Mr. Zaremba's statement that he filed the Form 489 late because of a clerical error does not meet any of the requirements of Section 1.925(b)(3) of the Commission's Rules. As a Commission licensee, Mr. Zaremba has an affirmative obligation to be informed and comply with the Commission's Rules. 7. Additionally, the Bureau has reviewed Mr. Zaremba's FCC Forms 600 with accompanying technical data and statements, and determined that the relocation for each station was permissible under Sections 22.123 and 22.163(a) of the Commission's Rules. These rules provide that licensees may make modifications to existing locations if the changes are minor. Because the modifications Mr. Zaremba made did not change the original interference contours, the modifications were minor, and therefore, permissible. 8. The Commission's Forfeiture Policy Statement, which became effective on October 14, 1997, provides that cases arising from facts that occurred prior to the effective date of the Forfeiture Policy Statement shall be decided on a case-by-case basis. Because the violations in question began, at latest, in early 1997, which is the latest time when Mr. Zaremba constructed his stations, we will use the case-by-case method. In prior cases, 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 is established, however, Section 503(b)(2)(D) of the Act requires the Commission to consider "the nature, the degree of culpability, any history of prior offenses, ability to pay, and other such factors as justice may require." We note that Mr. Zaremba was previously assessed forfeitures for failing to file FCC Forms 489 in a timely manner. He paid the aforementioned forfeitures on September 4, 1998. We also note that the violations in this case continued for an extended period of time (over 16 months after the construction deadline for the two stations passed before Mr. Zaremba filed his FCC Forms 489). In this case, after taking into consideration all of the factors required by Section 503(b)(2)(D) of the Act, including, but not limited to, Mr. Zaremba's record of prior violations, the length of time during which the violations took place, and the nature of the stations in question, we believe an appropriate forfeiture amount is $3,000 per station, for a total of $6,000. IV. Conclusion and Ordering Clauses 9. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission's Rules, Mr. Zaremba is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of six thousand dollars ($6,000) for repeatedly violating Section 22.142(b) of the Commission's Rules. 10. 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. Zaremba SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/ Return Receipt Requested, to Mr. Zaremba's counsel, Joyce & Jacobs, 1019 19th Street N.W. 14th Floor, Washington, D.C. 20036. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau