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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
Falcon Radio, Inc.              )    File No. EB-00-TS-002
Trunked Business Station        )
Denver, CO                     )     NAL/Acct. No. 915DV0005
                               ) 
and                             )
                                )
Falcon Radio, Inc.              )    File No. EB-00-TS-009
Trunked Business Station        )    
Denver, CO                      )    NAL/Acct. No. 915DV0006


                  MEMORANDUM OPINION AND ORDER
                      AND FORFEITURE ORDER 

Adopted:  July 30, 2001         Released:  August 1, 2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In this  Memorandum Opinion  and Order  and  Forfeiture 
  Order   (``Order''),   we   consolidate   the   above-captioned 
  proceedings involving  Falcon Radio, Inc. (``Falcon'')  because 
  they raise  overlapping issues.  For  the reasons that  follow, 
  we issue a monetary  forfeiture in the amount of five  thousand 
  dollars ($5,000)  to Falcon for its  unlicensed operation of  a 
  900  MHz  business   radio  system  at  Thorodin  Mountain   in 
  Wondervu,  Colorado,  in  willful  and  repeated  violation  of 
  Section  301 of  the Communications  Act  of 1934,  as  amended 
  (``the Act'').1  In addition, we rescind a monetary  forfeiture 
  in the  amount of twenty thousand  dollars ($20,000) issued  to 
  Falcon  for its  unlicensed operation  of  a 900  MHz  business 
  radio system at  Squaw Mountain in Idaho Springs, Colorado,  in 
  willful and repeated violation of Section 301 of the Act.  

                         II.  BACKGROUND

2.        In 1998,  after  receiving complaints  and  information 
  regarding non-compliant  operation and use of  the 800 MHz  and 
  900 MHz frequency bands  in the Denver area, the FCC's  Denver, 
  Colorado  Field   Office  (``Denver   Office'')  initiated   an 
  investigation.   As part  of this  investigation, on  September 
  23, 1998,  agents from  the Denver Office  inspected a  trunked 
  radio  system  located at  Squaw  Mountain  in  Idaho  Springs, 
  Colorado.  The  system was composed  of five transmitters,  all 
  of which were  in operation.  Measurements taken by the  agents 
  indicated  that  the   radio  equipment  was  transmitting   on 
  frequencies 939.3875 MHz, 939.4000 MHz, 939.4125 MHz,  939.4250 
  MHz, and  939.4375 MHz.   At the  time of  the inspection,  the 
  system was being  managed and operated by Falcon, a  subsidiary 
  of  High  Voltage, Inc.  (``High  Voltage'').   Jack  Spillman, 
  Falcon's  service  manager,  told  the  agents  that  the  five 
  channels at the Squaw Mountain site were part of a ten  channel 
  station licensed  to High Voltage at  Squaw Mountain under  the 
  call sign WPIZ573.   Mr. Spillman stated that High Voltage  had 
  received  Special   Temporary  Authority  (``STA'')  from   the 
  Commission to construct and operate the other five channels  at 
  Thorodin Mountain in Wondervu, Colorado.  

3.        On September 28,  1998, agents from  the Denver  Office 
  inspected the  Thorodin Mountain site.   The agents observed  a 
  trunked  radio system  composed of  five transmitters,  all  of 
  which  were in  operation.  Measurements  taken by  the  agents 
  indicated  that  the   radio  equipment  was  transmitting   on 
  frequencies 939.4500 MHz, 939.4625 MHz, 939.4750 MHz,  939.4875 
  MHz, and 939.5000 MHz.   Mr. Spillman was also present at  this 
  inspection.  He  repeated that  High Voltage  had received  STA 
  from the Commission to construct and operate the five  channels 
  at the  Thorodin Mountain  site rather than  at the  authorized 
  Squaw  Mountain site  and  provided a  copy  of a  request  for 
  extension of the STA as authorization for the operation at  the 
  Thorodin Mountain site.  

4.        In reviewing  Commission  records,  the  Denver  Office 
  discovered   that  the   Wireless   Telecommunications   Bureau 
  (``Wireless  Bureau'')  had deleted  the  license  for  Station 
  WPIZ573  from  its database  on  March  24, 1998,  based  on  a 
  failure  to construct  Station WPIZ573  and  to respond  to  an 
  ``800H  letter,'' the  third and  final of  three form  letters 
  routinely  sent out  by  the  Wireless Bureau  to  request  the 
  construction  status  of  a  particular  station.   Review   of 
  Commission records showed no other authorization for  operation 
  at  the  Squaw  Mountain  site.   Moreover,  while  review   of 
  Commission records revealed that High Voltage had obtained  STA 
  to  construct  and  operate  five  channels  at  the   Thorodin 
  Mountain site  for a 180-day period  from December 4, 1996,  to 
  June 4, 1997, there was no record of any extension of this  STA 
  or  any  other authorization  for  operation  at  the  Thorodin 
  Mountain site.

5.        Based on  its  finding  that the  license  for  Station 
  WPIZ573 had been  cancelled, on September 15, 1999, the  Denver 
  Office issued  a  Notice of  Apparent Liability for  Forfeiture 
  (``NAL'') in  the amount of  twenty thousand dollars  ($20,000) 
  to Falcon for unlicensed operation of a 900 MHz business  radio 
  system at  Squaw Mountain in  Idaho Springs, Colorado  (``Squaw 
  Mountain NAL'').2   On that same date,  the Denver Office  also 
  issued  an  NAL  in  the  amount  of  twenty  thousand  dollars 
  ($20,000)  to Falcon  for unlicensed  operation  of a  900  MHz 
  business  radio  system  at  Thorodin  Mountain  in   Wondervu, 
  Colorado  (``Thorodin   Mountain  NAL'').3    Falcon  filed   a 
  response to  the Thorodin  Mountain NAL on  October 14,  1999,4 
  but did not file  a timely response to the Squaw Mountain  NAL.  
  The Enforcement Bureau issued a Forfeiture Order affirming  the 
  Squaw  Mountain NAL  on December  21, 1999.5   On December  20, 
  1999, Falcon  filed a  letter requesting that  its October  14, 
  1999 response to the  Thorodin Mountain NAL also be treated  as 
  a response  to the Squaw Mountain  NAL.  Falcon stated that  it 
  had not received a  copy of the Squaw Mountain NAL at the  time 
  it was  issued and that  it had only  recently become aware  of 
  the Squaw  Mountain NAL.  Falcon's  December 20, 1999  pleading 
  was an  untimely response to  the Squaw Mountain  NAL6 and  was 
  submitted too late  to receive consideration prior to  issuance 
  of  the Forfeiture  Order.  Nevertheless,  we will  treat  this 
  pleading as  a petition for  reconsideration of the  Forfeiture 
  Order pursuant to Section 1.106 of the Commission's Rules.7

6.        Falcon argues that the license for Station WPIZ573  was 
  incorrectly cancelled  because Station WPIZ573 was  constructed 
  and placed  into operation in a  timely manner.  Falcon  states 
  that five of the ten channels licensed to Station WPIZ573  were 
  constructed and placed  into operation at the authorized  Squaw 
  Mountain site within the one-year construction period.   Falcon 
  further states  that on December 4,  1996, the Wireless  Bureau 
  granted  High  Voltage   STA  to  construct  and  operate   the 
  remaining five  channels at  the Thorodin Mountain  site for  a 
  180-day  period ending  June 4,  1997. Although  Falcon  admits 
  that the request for extension of the STA was never filed  with 
  the  Commission, it  maintains that  the  failure to  file  the 
  extension request  was the result  of an administrative  error.  
  Falcon avers that it continued to operate the five channels  at 
  the Thorodin Mountain  site under the mistaken belief that  the 
  STA had been extended  pending the filing of an application  to 
  modify the license for Station WPIZ573 to permanently  relocate 
  the five channels to the Thorodin Mountain site.  High  Voltage 
  filed a  modification application for  Station WPIZ573 on  June 
  1, 1998.  This application was returned to High Voltage by  the 
  frequency coordinator  on November 11,  1998, because the  call 
  sign WPIZ573 had  been deleted from the Commission database  on 
  March 24, 1998.

7.        Falcon also asserts  that High  Voltage never  received 
  the Wireless  Bureau's 800H  letter or any  other request  from 
  the  Commission  for  information  about  the  status  of   the 
  construction  of Station  WPIZ573.  However,  Falcon  maintains 
  that  the Wireless  Bureau  was  notified in  the  STA  request 
  granted on December 4, 1996, that five of the ten channels  had 
  been constructed  and placed into  operation at the  authorized 
  Squaw Mountain  site.  Additionally, Falcon  asserts that  High 
  Voltage was not  notified that the license for Station  WPIZ573 
  had been cancelled  until late September 1998, when FCC  agents 
  from  the  Denver  Office  inspected  the  Squaw  and  Thorodin 
  Mountain  sites.   Falcon   concedes  that  High  Voltage   was 
  unsuccessful   in   achieving   total   compliance   with   the 
  Commission's rules, but  argues that the forfeitures should  be 
  rescinded or substantially  reduced in light of High  Voltage's 
  good  faith  in attempting  to  comply  with  the  Commission's 
  rules.  Finally, Falcon  requests that the license for  Station 
  WPIZ573  be reinstated  for  the  five channels  at  the  Squaw 
  Mountain site.8  

                      III.      DISCUSSION

8.        Section  301  of  the  Act  prohibits  radio  operation 
  ``except  under and  in accordance  with this  Act and  with  a 
  license in  that behalf  granted under the  provisions of  this 
  Act.''9   We find  that Falcon  operated  the 900  MHz  trunked 
  radio system  without a valid license  in willful and  repeated 
  violation of  Section 301 of the  Act.  Nevertheless, we  agree 
  with Falcon  that the  circumstances presented  here justify  a 
  substantial reduction of  the forfeitures assessed or  proposed 
  in this proceeding.  We note in particular that since  Falcon's 
  STA   request,  granted   on   December  4,   1996,   indicated 
  construction  of the  Squaw  Mountain  site more  than  a  year 
  before the license  for that facility was cancelled, and  since 
  Falcon did not  receive notice of the cancellation, Falcon  may 
  have  reasonably  -  albeit  mistakenly  -  believed  that  the 
  facility was duly  authorized.  Thus, a $20,000 forfeiture  for 
  unauthorized  operation  is  unwarranted  and  we  rescind  the 
  $20,000  forfeiture  issued   to  Falcon  for  its   unlicensed 
  operation of a 900 MHz trunked radio system at Squaw  Mountain.  
  In  addition, we  reduce  the forfeiture  amount  for  Falcon's 
  unlicensed  operation of  a 900  MHz  trunked radio  system  at 
  Thorodin Mountain from $20,000 to $5,000.  Finally, we  caution 
  Falcon  to  exercise   greater  diligence  in  submitting   all 
  appropriate filings to the Commission on a timely basis.  

9.        Regarding Falcon's  request  for reinstatement  of  the 
  license for Station WPIZ573 for the five channels at the  Squaw 
  Mountain site,  a forfeiture proceeding  is not an  appropriate 
  vehicle for seeking  reinstatement of a cancelled license.   If 
  Falcon wishes to  seek reinstatement of the license, it  should 
  file   a   request  for   reinstatement   with   the   Wireless 
  Telecommunications Bureau.

                      IV.  ORDERING CLAUSES

10.       Accordingly, IT IS ORDERED, pursuant to Section  503(b) 
  of the Communications  Act of 1934, as amended,10 and  Sections 
  0.111,  0.311 and  1.80(f)(4)  of the  Rules,11  Falcon  Radio, 
  Inc., IS  LIABLE FOR  A MONETARY  FORFEITURE in  the amount  of 
  five thousand dollars ($5,000) for unauthorized operation of  a 
  radio station in willful and repeated violation of Section  301 
  of the Act.  

11.       IT IS FURTHER ORDERED that the forfeiture in the amount 
  of twenty  thousand dollars ($20,000)  issued to Falcon  Radio, 
  Inc., NAL/Acct. No. 915DV0005, IS RESCINDED.

12.       IT IS  FURTHER  ORDERED  that  the  December  20,  1999 
  petition for reconsideration  of the Forfeiture Order filed  by 
  Falcon Radio, Inc. IS GRANTED TO THE EXTENT INDICATED HEREIN.

13.       IT IS FURTHER ORDERED that, pursuant to Section 405  of 
  the Act  and Section  1.106(f) of  the Rules,  the January  24, 
  2000  petition  for reconsideration  of  the  Forfeiture  Order 
  filed by Falcon Radio, Inc. IS DISMISSED as untimely. 

14.       Payment of the forfeiture shall  be made in the  manner 
  provided for in Section  1.80 of the Rules12 within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of the Act.13  Payment shall be made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission,  Forfeiture  Collection  Section,  Finance  Branch, 
  P.O.  Box 73482,  Chicago,  Illinois 60673-7482.   The  payment 
  should  note  NAL/Acct.  No.  915DV0006.   Requests  for   full 
  payment under  an installment  plan should be  sent to:  Chief, 
  Credit  and Debt  Management  Center, 445  12th  Street,  S.W., 
  Washington, D.C. 20554.14

15.       IT IS FURTHER ORDERED that,  a copy of this  Forfeiture 
  Order shall be sent by Certified Mail Return Receipt  Requested 
  to  Falcon  Radio, Inc.  at  7340  South Alton  Way,  Suite  2, 
  Englewood, Colorado 80112  and by first class mail to  Benjamin 
  J. Aron, Esq.,  Schwaninger & Associates, P.C., 1835 K  Street, 
  N.W., Suite 650, Washington, DC  20006.


                         FEDERAL COMMUNICATIONS COMMISSION



                         
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 U.S.C.  301.

  2  Notice  of  Apparent  Liability,  NAL/Acct.  No.   915DV0005 
(released September 15, 1999).     

  3  Notice  of  Apparent  Liability,  NAL/Acct.  No.   915DV0006 
(released September 15, 1999).

  4   This   pleading   was   styled   as   a   ``Petition    for 
Reconsideration'' of  the  Thorodin Mountain  NAL.   Pursuant  to 
Section 1.80(f)(3) of the Rules, 47 C.F.R.  1.80(f)(3), we  will 
treat this pleading as a response to the NAL.     

  5 Falcon Radio, Inc., DA 99-2961 (Enf. Bur., released  December 
21, 1999).     

  6 Pursuant to Section  1.80(f)(3) of the Rules, the subject  of 
an NAL generally has 30 days from  the date of the NAL to file  a 
response.  47 C.F.R.  1.80(f)(3).

  7   47  C.F.R.     1.106.    Falcon  filed   a  petition   for 
reconsideration of  the Forfeiture  Order  on January  24,  2000, 
again requesting that we associate  its response to the  Thorodin 
Mountain NAL with the Squaw Mountain NAL.  Because this  petition 
was filed more than 30 days  after the release of the  Forfeiture 
Order, it is untimely and therefore will not be considered.   See 
47 U.S.C.   405; 47  C.F.R.  1.106(f).   Nevertheless, we  note 
that  the  substantive  arguments  advanced  by  Falcon  in  this 
petition were included in the  December 20, 1999 pleading,  which 
we are considering here.  

  8 Falcon  does not seek reinstatement  of the five channels  at 
the Thorodin Mountain site, four of which have been relicensed to 
another entity.

  9 47 U.S.C.  301.     

  10 47 U.S.C.  503(b).

  11 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  12 47 C.F.R.  1.80.

  13 47 U.S.C.  504(a).

  14 See 47 C.F.R.  1.1914.