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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number: EB-07-DV-340
) NAL/Acct. No.: 200832800004
Licensee of Station WQBI487
) FRN: 0013803523
Canon City, Colorado
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2008
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Colomex, Inc. ("Colomex"), licensee of station WQBI487, in Canon
City, Colorado, apparently willfully and repeatedly violated Section
1.903(a) of the Commission's Rules ("Rules") by operating this
station on a channel other than one of the authorized channels listed
on the license. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Colomex is
apparently liable for a forfeiture in the amount of four thousand
2. Colomex, a franchisee of the Taco Bell Corporation, holds license
WQBI487, qualifying under the industrial/business pool, conventional
radio service ("IG"), to operate in the 460 MHz band for a term
expiring on October 14, 2014. Under call sign WQBI487, Colomex is
authorized to operate on any one of the fifteen frequencies listed on
WQBI487, beginning at the first listed channel, 464.0125 MHz and
ending at the fifteenth channel, 464.3625 MHz. WQBI487 authorizes
Colomex to operate its mobile radios within a 121 km (75 miles) radius
of any one of five fixed locations expressed in coordinate form on the
license. The Taco Bell located at 1112 Royal Gorge Boulevard, in Canon
City, Colorado, corresponds to "Loc[ation] 4" on the license, with its
coordinates of 38-o 26' 36" north latitude and 105-o 13' 55.3" west
3. On November 16, 2007, the Enforcement Bureau's Denver Office received
a complaint of interference from the licensee of radio station
KNBS557, licensed to operate on 154.515 MHz in Canon City, Colorado.
The complainant was hearing conversations related to the Taco Bell
customer drive through ordering operations, and contended that
transmissions from the Taco Bell radio system had been occurring for
approximately ten years. A search of the FCC's ULS database for
licensees within 10 km of station KNBS557 and operating on 154.515 MHz
yielded only the license for radio station KNBS557.
4. On January 10, 2008, utilizing direction finding techniques and
listening to the content of the subject's transmissions, agents from
the Denver Office positively identified the source of the signal on
154.515 MHz as being the Taco Bell restaurant located at 1112 Royal
Gorge Boulevard, in Canon City, Colorado. The Denver Office agents
again identified the source of the 154.515 MHz signals by observing
the transmissions of the mobile radio in the presence of the Taco Bell
operator. During an interview with the Taco Bell duty manager, a copy
of the FCC license, WQBI487, was produced for the Denver Office
agents. WQBI487 authorized only UHF channels in the 460 MHz band. No
VHF frequencies, including 154.515 MHz, were authorized in the license
for WQBI487. A Notice of Unlicensed Radio Operation (NOUO) was issued
to the Taco Bell in Canon City and receipt was acknowledged by the
duty manager. The NOUO noted that a valid FCC radio license for
transmission on 154.515 MHz was not in evidence at the time of the
5. On January 11, 2008, the Colomex Director of Operations ("Director")
called the Denver Office and spoke with one of the agent who had
investigated Colomex's operations. The Director indicated that the
radio service company was working on the radio equipment at that time.
The Director asked the Denver agent to explain WQBI487's technical
parameters, in particular the correct frequency for the Taco Bell
located in Canon City. The Denver agent explained that WQBI487 allowed
for the use of fifteen 460 MHz (UHF) channels at the Canon City Taco
6. Colomex's Director of Operations called again on January 14, 2008. In
his voice mail message, the Director stated that the radio service
company replaced the equipment and that the replacement transmitter
was operating on 151.655 MHz. The Director stated he was told by the
radio service company that 151.655 MHz was an itinerant channel that
was acceptable for use.
7. On January 15, 2008, the Denver agent called the Director and
explained that the 151.655 MHz frequency was not authorized on
WQBI487. The Director stated that the Canon City Taco Bell was
operating on 151.655 MHz because no UHF (460 MHz) equipment was
available. The Denver agent explained to the Director that the
licensing process must be initiated and temporary authority obtained
before Colomex can legally operate on 151.655 MHz.
8. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be operated only in accordance with the rules
applicable to their particular service and with a valid authorization
granted by the Commission. On January 10, 2008, the Denver agents
found Colomex operating on 154.515 MHz, a frequency not authorized by
its license WQBI487. Colomex received a NOUO warning it against
continuing to operate on channels for which it did not hold a valid
station authorization. On January 15, 2008, Colomex's Director of
Operations admitted to switching operations to 151.655 MHz at the
Canon City Taco Bell. Colomex was aware the operations on 151.655 MHz
were not authorized by its license and admitted such operation to the
Denver agent. Consequently, its violation was willful. The violation
occurred for more than one day, therefore, it was repeated. Based on
the evidence before us, we find that Colomex apparently willfully and
repeatedly violated Section 1.903(a) of the Rules by operating station
WQBI487 on frequencies other than those authorized by its license.
10. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for using an unauthorized frequency is $4,000.
In assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(E) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Colomex is apparently liable for a $4,000
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Colomex, Inc., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violations of Sections 1.903(a) of
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Colomex, Inc., SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
13. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215
South Wadsworth Boulevard, Suite 303, Lakewood, Colorado, 80226, and
must include the NAL/Acct. No. referenced in the caption.
15. 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 submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Colomex, Inc.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
KNBS557 is an industrial/business pool, conventional radio service ("IG")
licensed to operate on 154.515 MHz and for a term expiring on June 5,
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he 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...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[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."
47 C.F.R. S: 1.903(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission