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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
420 Energy Investments, Inc. ) File No. EB-00-CF-386
Burnsville, WV )
and ) NAL/Acct. No.
Sardis, WV )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 3,
By the District Director, Columbia Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(NAL), we find that 420 Energy Investments, Inc. (``420 Energy'')
has apparently violated Section 1.903(a) of the Commission's
Rules and Regulations (the ``Rules")1 by failing to operate
stations WPFQ228, Burnsville, West Virginia and WPFP282, Sardis,
West Virginia in accordance with the terms of the station
licenses. We conclude that 420 Energy is apparently liable for a
forfeiture in the amount of $6,000 for each of the two stations
in violation, resulting in a total proposed forfeiture amount of
twelve thousand dollars ($12,000).
2. Station WPFQ228, licensed to 420 Energy and located at
Burnsville, WV, was inspected on July 11, 2000 by agents from the
Commission's Columbia, Maryland Field Office. During that
inspection, the agents discovered that the station was
transmitting on 856.3375 MHz, a frequency not authorized for use
at that station. They also noted that several authorized
frequencies were not installed.
3. As a result of violations noted at WPFQ228, the agents
requested to inspect station WPFP282 at Sardis, WV. Inspection
of station WPFP282 revealed that the station was transmitting on
855.9625 MHz, a frequency not authorized for use at that station.
Equipment was installed to permit operation on 855.7125 MHz and
854.9625 MHz, frequencies not authorized for use at station
WPFP282. They also noted that several authorized frequencies
were not installed.
4. The Columbia office issued a Notice of Violation to 420
Energy for station WPFQ228 and station WPFP282 on July 25, 2000
detailing these violations. In a reply dated September 11, 2000,
420 Energy stated that it began ``swapping`` frequencies between
the two stations in late 1999 and submitted applications on
February 2, 2000 to cover the new frequency usage. Those
applications were returned on May 17, 2000 and the application
for WPFP282 was resubmitted on July 17, 2000. The reply stated
that on July 20, 2000 the Commission cancelled the license for
station WPFQ228. 420 Energy acknowledged that they operated on
frequencies not authorized for the facilities and that they
should have obtained Special Temporary Authority ``prior to
initiating any operations not in conformance with the
specifications reflected on its outstanding authorization.'' On
October 6, 2000 a Notice of Violation (Continuation) was issued
for each station. Those Continuations asked 420 Energy to confirm
that station WPFQ228 and station WPFP282 had ceased operation on
the unauthorized frequencies. And if such operation had not
ceased, to confirm by what authority the stations were continuing
to operate. 420 Energy stated in their response dated October
18, 2000 that the operation had not ceased, pending grant of
Special temporary Authority requested on October 12, 2000.
5. Section 1.903(a) requires that stations in the Wireless
Radio Services must be operated in accordance with applicable
rules and with a valid authorization granted by the Commission.
The licensee acknowledged in his reply dated September 11, 2000
that he should have obtained Commission authority prior to
beginning operation in late 1999 on frequencies not authorized at
the two stations. In a reply dated, October 18, 2000, the
licensee acknowledged that the unauthorized operation had
continued pending receipt of Commission authorization. Based on
the replies, the Licensee did not apply for Special Temporary
Authority to operate the stations, as constructed, until October
12, 2000. The requested Special Temporary Authority was granted
on October 31, 2000. It is clear that 420 Energy was aware for
some time that it was operating in violation of Section 1.903(a)
and consciously chose to continue to operate in violation.
6. Based on the evidence before us, we find that 420
Energy Investments, Inc. operated in willful2 and repeated3
violation of Section 1.903(a) of the Rules. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Policy
Statement''), sets the base amount for use of an unauthorized
frequency at four thousand dollars ($4,000) per violation. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Communications Act of 1934 (``Act'')4, as amended, that
include 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 matters as justice may require. Applying the Policy
Statement and statutory factors to the instant case, we believe
that a monetary forfeiture in the amount of six thousand dollars
($6,000) per station in violaton for a total of twelve thousand
dollars ($12,000) is warranted. This amount reflects an increase
above the base amount due to the conscious, continuing violation
at both the Burnsville and Sardis stations.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act5 and Sections 0.111, 0.311 and 1.80 of the
Rules6, 420 Energy Investments, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of twelve
thousand dollars ($12,000) for willfully and repeatedly violating
Section 1.903(a) of the Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty (30) days of the date of release of this
NOTICE OF APPARENT LIABILITY, 420 Energy Investments, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200132340001.
10. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200132340001.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.7
13. IT IS FURTHER ORDERED THAT this notice shall be sent,
by certified mail, return receipt requested, to 420 Energy
Investments, Inc., c/o Wayne V. Black, Keller and Heckman LLP,
1001 G Street, N.W., Suite 500 West, Washington, DC 20001.
Charles C. Magin
District Director, Columbia
1 47 C.F.R. § 1.903(a).
2Section 312(f)(1), which also applies to Section 503(b),
provides: ``the term `willful', when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act or any rule or
regulation of the Commission, authorized by this Act or by a
treaty ratified by the United States.'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387(1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, and 1.80.
7 See 47 C.F.R. § 1.1914.