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

In the Matter of                )
                                )
WWC License LLC                 )    File No. EB-00-TS-283
Licensee of Microwave Stations WPJE660  )
WPJD256 and WPJA761            )     NAL/Acct. No.  200132100014
Kansas                          )
                                   

                        FORFEITURE ORDER 

     Adopted:  November 5, 2001         Released:   November   7, 
2001  

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the amount  of four  thousand  dollars 
  ($4,000) to WWC License LLC (``WWC'') for willful and  repeated 
  violations of  Section 301 of the  Communications Act of  1934, 
  as amended  (``Act'')1 and Section  101.31 of the  Commission's 
  Rules  (``Rules'').2    The  noted  violations  involve   WWC's 
  operation  of microwave  radio stations  WPJE660, WPJD256,  and 
  WPJA761 without Commission authorization.

2.        On June 7, 2001, the Chief, Technical and Public Safety 
  Division,  Enforcement  Bureau  issued  a  Notice  of  Apparent 
  Liability  for  Forfeiture (``NAL'')  in  the  amount  of  five 
  thousand dollars ($5,000).3    WWC filed a response to the  NAL 
  on July 6, 2001.  

                           II.  BACKGROUND

3.        On March 9, 2000, WWC submitted applications to operate 
  fixed microwave radio  stations WPJE660, WPJD256, and  WPJA761.  
  Thereafter,  WWC  began  operating  the  stations  pursuant  to 
  Section  101.31(b)(1) of  the Rules.4   On June  29, 2000,  the 
  Commission returned the applications because the bandwidth  WWC 
  requested  exceeded  the  maximum  allowed  for  the  operating 
  frequency,  and  requested the  submission  of  amendments  and 
  waiver requests to operate with the bandwidth WWC sought.   WWC 
  submitted  an  application  for  Special  Temporary   Authority 
  (``STA'') on August 10, 2000.  The Wireless  Telecommunications 
  Bureau  granted WWC's  STA  request  on August  29,  2000,  and 
  granted  the   amended  applications   and  associated   waiver 
  requests on  October 10,  2000.  WWC continued  to operate  the 
  subject microwave  stations from  June 29, 2000  to August  29, 
  2000.

4.        On June 7, 2001, the Chief, Technical and Public Safety 
  Division, Enforcement Bureau issued the subject NAL to WWC  for 
  operating the  microwave stations  during the  period June  29, 
  2000, to  August 29, 2000, without  a valid license in  willful 
  and repeated  violation of Section 301  of the Act and  Section 
  101.31 of the Rules.

5.        In its response, WWC asserts that the Commission should 
  rescind the proposed  forfeiture. WWC acknowledges that  during 
  the period June 29,  2000, to August 29, 2000, it continued  to 
  operate its  facilities, but  argues that  its operations  were 
  lawful because they  were under color of conditional  operating 
  authority.5   WWC  states that  when  it  first  submitted  its 
  applications,  it believed  that it  had fulfilled  all of  the 
  Commission's   requirements  to   operate   under   conditional 
  authority.   WWC  argues that  under  the  Commission's  rules, 
  conditional  authority  ceases   only  if  an  application   is 
  returned as unacceptable for filing,6 and there is no  separate 
  provision for  the cessation  of conditional  authority if  the 
  application  is  returned   for  amendment.  WWC  claims   that 
  although the  return notice stated  that the applications  were 
  being  returned, it  did not  ``clearly articulate''  that  WWC 
  would no  longer be  eligible for  conditional authority.   WWC 
  argues  that  under  the  Administrative  Procedure  Act,   the 
  Commission  must   provide  adequate   written  notice   before 
  conditional  authority can  be revoked.7   WWC states  that  it 
  believed  that it  retained  conditional authority  even  after 
  return of its applications.

6.        WWC  asserts  that  its  alleged  violation  was  minor 
  because the Commission found its offense was not comparable  to 
  intentional   unlicensed  operation.    In  support   of   this 
  assertion  WWC points  out that  compared to  other  forfeiture 
  notices  the  operation   in  question  was  of  more   limited 
  duration,  under  less clear  notice  that  the  operation  was 
  unauthorized,  and in  violation  of a  relatively  minor  rule 
  requiring only a waiver  request. 8  WWC claims that there  was 
  no harm to the public or other Commission licensees during  the 
  period that  it operated  the stations.   Indeed, WWC  asserts, 
  the public  would have been  adversely affected by  termination 
  of  the conditional  authority  as the  subject  stations  were 
  being operated to  support valuable services.  WWC opines  that 
  the  public interest  was  best  served by  WWC  continuing  to 
  provide  its critical  services to  the public.   Consequently, 
  WWC argues that even if the Commission had properly put WWC  on 
  notice that its conditional authority had ceased, the  issuance 
  of  a forfeiture  in  this  case suggests  that  carriers  must 
  choose  between seriously  prejudicing the  public by  shutting 
  down facilities  that are not causing  any harm, or risk  being 
  subjected to a forfeiture.

                           III.  DISCUSSION

7.        As the NAL states, the  forfeiture amount in this  case 
  was assessed  in accordance  with Section 503(b)  of the  Act,9 
  Section 1.80  of the Rules,10  and The Commission's  Forfeiture 
  Policy Statement and Amendment of Section 1.80 of the Rules  to 
  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd   17087 
  (1997), recon.  denied, 15  FCC Rcd 303  (1999).  In  examining 
  WWC's response,  Section 503(b)  of the Act  requires that  the 
  Commission take into account 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.11

8.        Under Section 301 of  the Act, all radio  transmissions 
  within the  United States must be  licensed by the  Commission.  
  Section 101.31(b)(1)  of the  Rules sets  forth eight  specific 
  criteria that an  applicant for a new point-to-point  microwave 
  radio   station   must  meet   to   qualify   for   conditional 
  authorization.   In   situations  where   these  criteria   are 
  satisfied, the  applicant may  operate the  station during  the 
  pendency of  the application.  One of  these eight criteria  is 
  set  forth in  Section  101.31(b)(1)(iii) of  the  Rules12  and 
  provides that an applicant may operate pursuant to  conditional 
  authority  if grant  of  the  application does  not  require  a 
  waiver of  the Commission's rules.   As indicated earlier,  WWC 
  needed  a  waiver to  operate  at  the  requested  bandwidth.13  
  Thus, WWC failed to meet one of the eight criteria provided  in 
  Section  101.31(b),  and consequently,  WWC's  microwave  radio 
  stations  WPJE660, WPJD256,  and WPJA761  did not  qualify  for 
  conditional authorization when  it filed its applications  with 
  the  Commission.   See  Califormula,  Inc.,  16  FCC  Rcd  3057 
  (Enforcement Bureau, 2001),  recon. granted in part 16 FCC  Rcd 
  15087   (Enforcement   Bureau,   2001).    Since   under    the 
  Commission's  rules, WWC  never  had conditional  authority  to 
  operate, its arguments regarding the status of its  conditional 
  authority   once   the   Commission's   staff   returned    its 
  applications are irrelevant.

9.        WWC is correct, as the NAL notes, that the unauthorized 
  operation  was   not  comparable   to  intentional   unlicensed 
  operation.  We recognized  this fact in setting the  forfeiture 
  amount proposed  in the  NAL.  The base  forfeiture amount  for 
  operation without an instrument of authorization is  $10,000.14  
  Here, the NAL issued  a forfeiture amount of only $5,000.   The 
  unauthorized operation  in this  case was not  as egregious  as 
  that of  a ``pirate'' operator.  For  this reason, we have  not 
  treated WWC's unauthorized  operation the same as a  ``pirate'' 
  operation, and the amount of the proposed forfeiture  reflected 
  this  fact.   However,  in  view  of  WWC's  short  period   of 
  unlicensed operation, we  will reduce the forfeiture amount  to 
  $4,000.  In this regard, we note that the forfeiture amount  is 
  lower than all of the cases cited by WWC.

10.       We find unpersuasive WWC's arguments that the  stations 
  were being  operated to support valuable  services and no  harm 
  resulted.  Notwithstanding the services WWC may have  provided, 
  this does  not change our finding  that WWC violated our  rules 
  by   operating   the  subject   stations   without   Commission 
  authorization. 

                        IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b) of the  Act,15 and Sections 0.111, 0.311 and  1.80(f)(4) 
  of  the Rules,16  WWC  License LLC  IS  LIABLE FOR  A  MONETARY 
  FORFEITURE in the amount of four thousand dollars ($4,000)  for 
  operation  of microwave  radio stations  WPJE660, WPJD256,  and 
  WPJA761  without  a  valid  license  in  willful  and  repeated 
  violation  of Section  301 of  Act and  Section 101.31  of  the 
  Rules.

12.       Payment of the forfeiture shall  be made in the  manner 
  provided for in Section  1.80 of the Rules17 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.18  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, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should  note  the  NAL/Acct.  No.  referenced   above.  
  Requests for full  payment under an installment plan should  be 
  sent to: Chief,  Revenue and Receivables Operations Group,  445 
  12th Street, S.W., Washington, D.C. 20554.19

13.       IT IS FURTHER ORDERED that, a copy of this Order  shall 
  be sent  by Certified  Mail, Return Receipt  Requested, to  WWC 
  License  LLC  3650  131st  Ave.,  S.E.  Suite  400,   Bellevue, 
  Washington 98006  and to its  counsel, Michael Deuel  Sullivan, 
  Esq., Wilkinson  Barker Knauer, LLP, 2300  N Street, NW,  Suite 
  700, Washington, DC 20037-1128.

      

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1   47 U.S.C.  301.        

  2   47 C.F.R.  101.31.

  3   WWC  License LLC,  16 FCC  Rcd 11914  (Enforcement  Bureau, 
2001).

  4   47 C.F.R.  101.31(b)(1). 

  5   47 C.F.R.  101.31(b). 

  6   47 C.F.R.  101.31(b)(2). 

  7   5 U.S.C.  558(c).  In  support of its argument, WWC  cites 
Blackwell College of Business v.  Attorney General, 454 F.2d  928 
(D.C.  Cir.  1971)   (``Blackwell'')  and   Contel  Cellular   of 
Nashville, Inc., 14 FCC Rcd 6302 (1999) (``Contel'').

  8    Verizon  Florida,  Inc.,  16  FCC  Rcd  2590  (Enforcement 
Bureau, 2001) (``Verizon Florida'') (issuing a Notice of Apparent 
Liability for  Forfeiture  for  $5,000  for  operating  a  paging 
station without  authorization for  one  year and  four  months); 
Verizon Southwest,  Inc., 16  FCC Rcd  2247 (Enforcement  Bureau, 
2001) (``Verizon  Southwest'')  (issuing  a  Notice  of  Apparent 
Liability for Forfeiture for  $5,000 for operating an  air-ground 
system without authorization for six months); Califormula,  Inc., 
16 FCC  Rcd  3057 (Enforcement  Bureau,  2001)  (``Califormula'') 
(imposing $10,000  forfeiture  for operating  a  microwave  radio 
station without conditional authority), recon. granted in part 16 
FCC Rcd 15087 (reducing  forfeiture to $6,000); Central  Illinois 
Public Service Company, 15 FCC Rcd 1750 (1999) (issuing a  Notice 
of  Apparent   Liability   for   Forfeiture   for   $30,000   for 
substantially  transferring  control  of  88  microwave  stations 
without authorization);  Florida Power and Light Co., 14 FCC  Rcd  
7199 (Wireless Telecommunications Bureau, 1999) (issuing a Notice 
of Apparent Liability  for Forfeiture for  $14,000 for  operating 
seven microwave  stations after  expiration of  the licenses  for 
five months).

  9    47 U.S.C.  503(b).

  10   47 C.F.R.  1.80.

  11   47 U.S.C.  503(b)(2)(D).

  12  47 C.F.R.  101.31(b)(1)(iii). 

  13  47 C.F.R.  101.109 and 101.147. 

14    See note to 47 C.F.R.  1.80(b)(4).

  15  47 U.S.C.  503(b).

     16 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     17 47 C.F.R.  1.80.

     18 47 U.S.C.  504(a).

     19 See 47 C.F.R.  1.1914.