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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-00-PO-038
Oregon Pacific Railroad Company )
Milwaukie, OR ) NAL/Acct. No. X3292001
MEMORANDUM OPINION AND ORDER
Adopted: February 7, 2001 Released: February 9,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the Oregon Pacific Railroad Company's (``Oregon Pacific'')
petition for reconsideration1 and affirm the Forfeiture Order2
issued against Oregon Pacific for willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended
(``the Act'').3 The noted violations involve Oregon Pacific's
operation of a two-way radio station without Commission
2. On June 13, 2000, the Portland, Oregon, Resident Agent
Office (``Portland Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of ten thousand
dollars ($10,000) to Oregon Pacific.4 Oregon Pacific did not
respond to the NAL. On October 10, 2000, the Enforcement Bureau
(``Bureau'') released a Forfeiture Order affirming the
forfeiture. Based on the information before us, we affirm the
assessment of a monetary forfeiture in this matter.
3. On April 3 and 4, 2000, the Portland Office received
complaints from the Veterans Administration Police (``VA'') about
interference to its communications on frequency 164.1 MHz. The
VA reported that the interference occurred whenever a signal was
on frequency 161.19 MHz. On April 3, 2000, an agent at the
Portland Office determined that Oregon Pacific had filed an
application to operate a station on 161.19 MHz.5
4. On April 4, 2000, agents from the Portland Office
inspected Oregon Pacific's radio installation and determined that
it was transmitting a spurious emission on the frequency 164.1
MHz which was causing the interference to the VA's
communications. On April 5, 2000, an agent at the Portland
Office informed Oregon Pacific by telephone that the interference
was continuing and Oregon Pacific agreed to shut its station
5. On April 6, 2000, the Portland Office issued an
Official Notice of Violation (``NOV'') to Oregon Pacific for
transmitting spurious emissions, in violation of Section
90.21(c)(3) of the Commission's Rules, and for failure to
identify the station in accordance with Section 90.159(c) of the
Rules. In its response to the NOV, Oregon Pacific reported that
it had eliminated the cause of the spurious emissions and that
the interference had ceased.
6. On April 28, 2000, an agent at the Portland Office
learned that, because of the automatic dismissal of Oregon
Pacific's application (for failure to resubmit the application
following its return for additional information), Oregon
Pacific's authority to operate a radio station had terminated.
On May 1, 2000, the Portland Office issued and mailed an
Unlicensed Warning Letter to Oregon Pacific for operating a
station without authorization, in violation of Section 301 of the
7. On May 31, 2000, agents from the Portland Office
observed transmissions on 161.19 MHz and electronically
pinpointed Oregon Pacific's radio installation in Milwaukie,
Oregon, as the source of those transmissions. Immediately after
their monitoring observations, the agents inspected Oregon
Pacific's radio installation. During the inspection the agents
spoke to Dick Samuels, the owner and general manager of Oregon
Pacific. At the conclusion of the inspection, an agent issued an
Unlicensed Warning Letter. After returning to the Portland
Office on May 31, 2000, and again on June 1, 2000, an agent
monitored communications on 161.19 MHz and recognized the voice
of the operator to be that of Dick Samuels.
8. Following Oregon Pacific's failure to respond to the
NAL, the Bureau released a Forfeiture Order on October 10, 2000,
in the amount of $10,000. In its petition for reconsideration of
the Forfeiture Order, Oregon Pacific stated that it submitted an
application for license renewal and believed it was authorized to
operate its station during the pendency of that application.
Oregon Pacific contended that ``Since the delay in issuing the
license is a result of the FCC's inability to process
[applications] in a timely manner [Oregon Pacific] should not be
held responsible for any fines.'' In addition, Oregon Pacific
argued that its operation on May 31, 2000, should not be
considered a violation of the Act because ``On May 31, 2000, Mr.
Lafontaine again visited our station and we agreed to discontinue
using the station until the licensing situation was resolved once
the two trains which [were] on the road completed their runs.''
Oregon Pacific also asserted that its operation on June 1, 2000,
was not in violation of Section 301 of the Act because on that
date (and thereafter), Oregon Pacific was temporarily authorized
to use a station licensed to the Union Pacific Railroad (``Union
9. Oregon Pacific's unlicensed operation cannot be blamed
on ``the FCC's inability to process [applications] in a timely
manner.'' Oregon Pacific's unlicensed operation resulted from
its own failure to resubmit its application within 60 days after
the return of that application for additional information6 and
from its subsequent failure to cease operation when its operating
authority terminated and FCC staff repeatedly warned it regarding
10. Oregon Pacific is responsible for the unlicensed
operation observed on May 31, 2000. Agent Lafontaine did not
give Oregon Pacific permission to operate a station on May 31,
2000, until ``the trains
. . . on the road completed their runs.'' Although Oregon
Pacific may have obtained permission to use a station licensed to
Union Pacific, the transmissions observed on June 1, 2000, were
on 161.19 MHz -- not on the frequency assigned to Union Pacific -
- and were, thus, unauthorized.
11. We can find no basis for remission or mitigation of the
forfeiture and, therefore, affirm the $10,000 forfeiture
assessed by the Forfeiture Order.
IV. ORDERING CLAUSES
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules7 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.8 Payment may 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
``NAL/Acct. No. X3292001'' referenced above. 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. 20554.9
13. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by Certified Mail -- Return Receipt
Requested, to Oregon Pacific Railroad Company, P.O. Box 22548,
Portland, Oregon 97269.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Oregon Pacific filed a statement in response to the
Forfeiture Order. Because there is no provision for responses to
Forfeiture Orders, we are treating Oregon Pacific's filing as a
petition for reconsideration of the Forfeiture Order.
2 Forfeiture Order, 15 FCC Rcd 12699 (Enf. Bur. 2000).
3 47 U.S.C. § 301.
4 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
X3292001 (Enf. Bur., Portland Resident Agent Office, released
June 13, 2000).
5 Section 90.159 of the Rules, 47 C.F.R. § 90.159,
conditionally authorizes Part 90 applicants who meet certain
conditions to operate stations while their applications are
6 Oregon Pacific asserts that its agent, the Association of
American Railroads, handled the filing of its application.
Oregon Pacific is fully responsible for the actions or inaction
of its agent.
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.