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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 re Notice of Apparent Liability for Forfeiture of ) ) MULZER ENTERPRISES, INC. ) File No. 720EF0011 ) Licensee of Paging and Radiotelephone Service Station ) KNLM888, Bandon, Indiana ) MEMORANDUM OPINION AND ORDER Adopted: June 29, 1999 Released: June 29, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. The Chief, Enforcement and Consumer Information Division, of the Wireless Telecommunications Bureau ("Bureau"), pursuant to delegated authority, has under consideration a "Petition for Reconsideration of Forfeiture" ("Petition") filed on November 12, 1998, by Mulzer Enterprises, Inc. ("Mulzer"). The Petition seeks reconsideration of a Memorandum Opinion & Order issued by the Acting Chief, Enforcement and Consumer Information Division ("Division"), imposing a $2,000 forfeiture for failing to file FCC Form 489, in violation of Section 22.142(b) of the Commission's Rules. For the reasons discussed below, we deny Mulzer's Petition for Reconsideration and affirm the Forfeiture Order. II. Background 2. On August 25, 1995, the Commission granted Mulzer authorization to construct facilities for radio station KNLM888. Pursuant to Section 22.511 of the Commission's Rules, Mulzer was required to complete construction within one year of the grant date, i.e., by August 25, 1996. In addition, Section 22.142(b) of the Commission's Rules required Mulzer to file an FCC Form 489 within 15 days after the start of service in order to notify the Commission that service had commenced. Mulzer completed construction and began operating the station before the expiration of the August 25, 1996, construction period. Mulzer, however, failed to timely file the requisite FCC Form 489. Unaware that Mulzer had completed construction, the Bureau, on October 30, 1996, released a Public Notice terminating Mulzer's license for call sign KNLM888 at Bandon, Indiana, by operation of Section 22.144 of the Commission's Rules. On December 5, 1996, Mulzer filed FCC Form 489 for station KNLM888 at Bandon, Indiana. 3. On July 17, 1997, the Division released a Notice of Apparent Liability for Forfeiture against Mulzer. We found that Mulzer had commenced operation prior to filing FCC Form 489, thereby violating Section 22.142(b) of the Commission's Rules. We also determined $2,000 to be the appropriate forfeiture amount. 4. Mulzer filed a response on August 18, 1997, requesting that the forfeiture be reduced or rescinded. Mulzer asserted that its violation was unintentional, that its failure to file was a minor violation, that Mulzer has a record of complying with the Commission's Rules, and that Mulzer promptly disclosed its violation as soon as it learned of its failure to file Form 489. In the Forfeiture Order released on October 13, 1998, we considered and rejected Mulzer's arguments. First, we noted that "intent is not required to show either a willful or repeated violation" of a Commission Rule. We then pointed out that the Commission "routinely imposes monetary forfeitures" for failing to file FCC Form 489. We also determined, contrary to Mulzer's claim, that Mulzer's disclosure of misconduct was not voluntary. Last, we noted that Mulzer had not demonstrated with specificity how its record of compliance with Commission Rules warranted a reduction of the forfeiture. III. Discussion 5. Mulzer offers two arguments in its Petition. First, it argues that the Division's failure to reduce the forfeiture based on Mulzer's "history of past compliance" with Commission Rules has in effect resulted in "a new forfeiture standard in that [the Commission] has elected to shift to the licensee the burden of proving [a] past record of compliance." In order to demonstrate with specificity its history of compliance, Mulzer also submitted a sworn declaration. Mulzer's manager of radio operations, Jerry Paris, declares that "Mulzer has been operating its Part 22 public mobile radio station, KNLM888, in compliance with the FCC's rules and regulations since it was first licensed, approximately five years ago." Mr. Paris signed the declaration on November 11, 1998. 6. We disagree with Mulzer's contention that its alleged history of compliance with Commission Rules warrants a reduction in the forfeiture. Contrary to Mulzer's assertion that the "FCC has not required the petitioner to demonstrate with specificity its record of compliance," Section 1.80(f)(3) of the Commission's Rules explicitly states that: Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent. Moreover, Mr. Paris' claim that Mulzer has operated station KNLM888 in compliance with the Commission's Rules since it was first licensed is undermined by a prior inconsistent statement submitted to the Commission by Mulzer. On April 18, 1996, -- approximately six months before the authorization for the transmitter in question here was terminated -- Mulzer admitted with respect to another base station licensed under call sign KNLM888 that it had failed to file a timely FCC Form 489. Under these circumstances, Mulzer's claim that it has a history of compliance with the Commission's Rules is specious. We remind Mulzer that Section 1.17 of the Commission's Rules prohibits willful material omissions in written statements to the Commission. We thus reject as totally baseless Mulzer's argument that its history of compliance warrants a reduction of the forfeiture. 7. We also find no merit to Mulzer's second contention that its disclosure was voluntary. In its Petition, Mulzer argues that, because the Commission had not made a specific request for Form 489 information, Mulzer had "voluntarily notified the FCC of its [Mulzer's] belated Form 489." Mulzer states that "the FCC did not inform Mulzer of any Form 489 violation, [sic] rather, it merely published a notice indicating that Mulzer's frequency had been deleted." Mulzer then concludes that "absent a specific agency request for Form 489 information, the licensee's provision of that information to the FCC at any time is obviously 'voluntary.'" 8. Mulzer's argument is flawed for two reasons. First, the terms and conditions of a grant impose upon a licensee an affirmative duty to notify the Commission that the licensee has completed construction and begun operation. See Section 22.142(b) of the Commission's Rules. There is thus nothing "voluntary" about a licensee's obligation to file FCC Form 489 within 15 days of the licensee's having completed construction and begun operations. The second flaw with Mulzer's "voluntary disclosure" argument stems from its apparent misunderstanding of the word "disclosure." Black's Law Dictionary defines the term "disclosure" as an "[a]ct of disclosing. Revelation; the impartation of that which is secret or not fully understood." The Bureau's release of a Public Notice terminating Mulzer's authorization on October 30, 1996, was predicated on Mulzer's failure to file Form 489. Mulzer's belated filing on December 5, 1996, could not, by definition, "reveal" or "impart" or "disclose" what the Commission already knew weeks before the December 5th date: that Mulzer had failed to timely file Form 489. Mulzer's argument that its forfeiture should be reduced because Mulzer had "voluntarily disclosed" its violation is thus completely without merit. IV. Conclusion and Ordering Clauses 9. Based on the foregoing, we conclude that Mulzer has failed to present any evidence warranting reconsideration of our Forfeiture Order denying Mulzer's request to reduce or rescind its forfeiture. 10. ACCORDINGLY, IT IS ORDERED that the "Petition for Reconsideration of Forfeiture" filed by Mulzer Enterprises, Inc. on November 12, 1998, IS DENIED. 11. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission's Rules, that Mulzer Enterprises, Inc. SHALL FORFEIT to the United States the sum of two thousand dollars ($2,000) for violation of Section 22.142(b) of the Commission's Rules. 12. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to Mulzer's counsel, Frederick M. Joyce, Esq., Joyce and 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