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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 ) ) AIRTOUCH COMMUNICATIONS, INC. ) File No. 920EF0046 ) Licensee of Paging and Radiotelephone ) Station KUC941, Waterloo, Iowa ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: July 12, 1999 Released: July 13, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. In this Notice of Apparent Liability for Forfeiture, we find AirTouch Communications, Inc. ("AirTouch"), licensee of Paging and Radiotelephone Station KUC941, Waterloo, Iowa, apparently liable for a forfeiture in the amount of four thousand dollars ($4,000). We find that AirTouch failed to timely notify the Commission of the commencement of service of Station KUC941, in apparent violation of current Section 1.946(d) and former Section 22.142(b) of the Commission's Rules. II. Background 2. On April 7, 1995, the Commission authorized AirTouch to relocate and to construct Station KUC941 at a new site located 0.8 miles south of Highway 412 in Waterloo, Iowa. AirTouch indicates that construction of the site was completed prior to April 7, 1996, the deadline for constructing the relocated station. The Commission has no record of AirTouch filing FCC Form 489, as required by Section 22.142(b) of the Commission's Rules. AirTouch has operated station KUC941 from the relocated site since construction was completed. On October 30, 1996, the Bureau issued a public notice announcing that AirTouch's authority to relocate station KUC941 had been cancelled. There is no evidence that AirTouch took any action in response to the public notice. 3. On April 22, 1999, AirTouch filed a request for Special Temporary Authority. Air Touch admitted that while it timely constructed the station, it "may not have filed an FCC Form 489 to notify the Commission of the timely completion of construction at the new location." AirTouch represents that it learned of the problem "in the course of a recent review of certain licensing files in connection with" its proposed acquisition by Vodafone Group, P.L.C. III. Discussion 4. Former 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." Similarly, Section 1.946(d) of the Commission's Rules provides in pertinent part: Licensee notification of compliance. A licensee who commences service or operations within the construction period or meets its coverage or substantial service obligations within the coverage period must notify the Commission by filing FCC Form 601. The notification must be filed with the Commission within 15 days of the expiration of the applicable construction or coverage period. The purpose of FCC Form 489 (and FCC Form 601) 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 someone else. These notifications, therefore, serve an important function. The Commission's policy of imposing monetary forfeitures for willful and/or repeated violations of Section 22.142(b) of the Commission's Rules is well established. 5. In light of AirTouch's admitted failure to timely file an FCC Form 489 for the relocation of Station KUC941, we conclude that AirTouch apparently and repeatedly violated former Section 22.142(b) of the Commission's Rules and current Section 1.946(d) of the Commission's Rules. Section 312(f)(2) of the Act defines an act or omission as "repeated" if the act or omission is continuous and lasts more than one day. 6. 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. Since the violations in question began in April 1996, we will determine the appropriate forfeiture using the case-by-case method. In cases not governed by the Forfeiture Policy Statement, we have determined that a base forfeiture amount of $2,000 is justified when a licensee has failed to timely file Form 489. Section 503(b)(2)(D) of the Act requires that the Commission 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 such other matters as justice may require" when assessing a forfeiture. In this case, taking into account all of the factors required by Section 503(b)(2)(D) of the Act, including, but not limited to, the long duration of the violation, and AirTouch's failure to respond to the public notice terminating the authorization, we believe a $4,000 forfeiture is appropriate. IV. Conclusion and Ordering Clause 7. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission's Rules, AirTouch is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of four thousand dollars ($4,000) for repeatedly violating former Section 22.142(b) and current Section 1.946(d) of the Commission's Rules. 8. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty days of the release of this Notice, AirTouch SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to counsel for AirTouch, Christine M. Crowe, Esq., Paul Hastings, Janofsky & Walker LLP, 1299 Pennsylvania Avenue, NW, Tenth Floor, Washington, DC 20004. Federal Communications Commission Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau