Click here for Microsoft Word Version
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In re )
PCS PARTNERS, L.P. ) File No. EB-01-IH-0084
) NAL/Acct. No. 200132080021
Applicant for Wireless Telecommunications )
Bureau Radio Service Authorization )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 14, 2001 Released: March 16,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find
that PCS Partners, L.P. (``PCS Partners'') failed to timely file
its ``long-form'' application (FCC Form 601) and accompanying
ownership report (FCC Form 602) following completion of the
Commission's C and F Block Broadband PCS Auction, in apparent
willful and repeated violation of Sections 1.2107(c) and
1.2107(f) of the Commission's rules.1 We conclude that PCS
Partners is apparently liable for a forfeiture in the amount of
2. On January 26, 2001, the Commission staff completed the
auction of 422 licenses in the C and F Block Broadband PCS
Auction. PCS Partners was among the participants in that
auction. On January 29, 2001, the Wireless Telecommunications
Bureau issued a Public Notice that provided detailed information
concerning specific post-auction obligations of winning bidders.2
The Public Notice established February 12, 2001, as the deadline
for winning applicants to submit their ownership and long-form
applications. The Public Notice also announced that PCS Partners
was a winning bidder in Auction 35.3
3. PCS Partners acknowledges that it received a copy of the
Public Notice on January 30, 2001.4 On February 13, 2001,
Commission staff telephoned David G. Behenna, PCS Partners' sole
authorized bidder and only employee, to notify him that the
Commission staff had not received PCS Partners' long-form
application by the February 12, 2001, deadline.5 Thereafter, on
February 14, 2001, PCS Partners manually filed its ownership
report, and, on February 16, 2001, it submitted a Waiver Request
and electronically filed its long-form application. In its
Waiver Request, PCS Partners explained that Mr. Behenna had not
retained legal counsel in connection with post-auction filings.
PCS Partners also stated that because Mr. Behenna was involved
``in numerous other matters,'' his failure to meet the long-form
filing deadline was inadvertent.6
4. Section 1.2107(c) of the Commission's rules provides that:
5. a high bidder that meets its down payment
obligations in a timely manner must, within ten (10)
business days after being notified that it is a high bidder,
submit an additional application (the ``long-form
application'') pursuant to the rules governing the service
in which the applicant is the high bidder.
7. This section further provides that long-form
applications must be filed electronically. Additionally,
Section 1.2107(f) requires applicants to file an ownership
report with its long-form application. The ownership form
must be filed manually.
5. The purpose of the long-form application is to provide vital
information concerning winning bidders and their qualifications
to be Commission licensees. Public notice of acceptance of a
winning bidder's long-form application triggers the establishment
of the pleading cycle for petitions to deny.7 The timely filing
of a long-form application is thus essential to the efficiency of
the competitive bidding licensing process.
6. On October 5, 2000, the Commission staff released a Public
Notice announcing the upcoming C and F Block Broadband PCS
Auction.8 Therein, auction participants were informed of their
post-auction filing obligations in the event they were winning
bidders. Thus, PCS Partners was on notice even before the
auction commenced that, if it were a winning bidder, it would
have to electronically submit a properly completed long-form
application within ten business days after release of the auction
closing notice. In addition, PCS Partners acknowledges receiving
the January 29, 2001, post-auction Public Notice establishing
February 12, 2001 as the filing deadline and describing in detail
the long-form application and ownership report filing
requirements. Nevertheless, PCS Partners failed to file its
long-form application and ownership report on time. In light of
these facts, we conclude that PCS Partners failed to file its
ownership report and long-form application by the established and
well publicized deadline, in willful and repeated violation of
Sections 1.2107(c) and 1.2107 (f) of the Commission's rules.9
7. Section 503(b)(1)(B) of the Communications Act of 1934, as
amended, provides that any person who willfully or repeatedly
fails to comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty.10 The guidelines contained in
the Commission's Forfeiture Policy Statement specify a base
forfeiture amount of $3,000 for failure to file required
information.11 The guidelines also permit the Commission to
issue a higher or lower forfeiture amount based on such factors
as the nature, circumstances, extent and gravity of the
violation, and, with respect to the violator, the degree of
culpability, history of any prior offenses, ability to pay, and
such other matters as justice may require. PCS Partners does not
dispute that it received actual notice of the filing requirements
and that it failed to timely file the necessary forms. We
believe a forfeiture is appropriate in this case, and see no
basis for departing from the base forfeiture amount. Thus, we
propose a forfeiture in the amount of $3,000. This amount is
consistent with at least one other case involving a similar
12. IV. ORDERING CLAUSES
8. ACCORDINGLY, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, PCS Partners, L.P. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of $3,000 for
willfully and repeatedly violating Sections 1.2107(c) and
1.2107(f) of the Commission's rules.
9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80, that within thirty days of
the release of this Notice, PCS Partners SHALL PAY the full
amount of the proposed forfeiture, or SHALL FILE a written
response seeking reduction or cancellation
of the proposed forfeiture.13
10. IT IS FURTHER ORDERED that copies of this Notice shall be
sent, by Certified Mail -- Return Receipt Requested, to PCS
Partners, L.P., Attn. David G. Behenna, 111 North Sepulveda
Boulevard, Suite 250, Manhattan Beach, CA, 90266-6850; and to
counsel for PCS Partners, L.P., Piper Marbury Rudnick & Wolfe,
Attn. Mark J. Tauber, Esq., 1200 19th Street, NW, Washington, DC,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 1.2107(c), 1.2107(f).
2 Public Notice, C and F Block Broadband PCS Auction Closes, DA
01-211 (WTB, released January 29, 2001).
3 Id. at Attachment A.
4 See Waiver Request, dated February 15, 2001, from Mark J.
Tauber, Piper Marbury Rudnick & Wolfe, counsel for PCS Partners,
to Thomas J. Sugrue, Chief, Wireless Telecommunications Bureau
(``Waiver Request''). The Wireless Telecommunications Bureau
subsequently granted the Waiver Request. See In re Application
of PCS Partners, L.P., Order, DA 01-518 (WTB, released Feb. 27,
5 See Waiver Request.
6 See Waiver Request.
7 See 47 C.F.R. § 1.2108(b).
8 Public Notice, C and F Block Broadband PCS Spectrum Auction
Scheduled for December 12, 2000, DA 00-2259 (WTB, released
October 5, 2000).
9 The Commission has held that an act or omission is ``willful''
if it is a conscious and deliberate act or omission, whether or
not there is any intent to violate the rule. Southern California
Broadcasting Company, 6 FCC Rcd 4387 (1991)(definition of
willfulness contained in 47 U.S.C. § 312(f) applies equally to
47 U.S.C. § 503). Furthermore, a continuing violation is
``repeated'' if it lasts more than one day. Id., 6 FCC Rcd at
10 47 U.S.C. § 503(b)(1)(B).
11 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17114
(1997)(``Forfeiture Policy Statement''); recon denied 15 FCC Rcd
12 See e.g., In the Matter of Application of PinPoint
Communications, Inc., Notice of Apparent Liability for
Forfeiture, 14 FCC Rcd 6427 (WTB, 1999) (proposing a $3,000
forfeiture against winning bidder that filed its long-form
application six days late because of administrative oversight).
13 Payment 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 must reference the Acct. No. identified
above. The response, if any, must reference the File No.
identified above and be directed to Charles W. Kelley,
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Room
3-B443, Washington DC 20554. The Commission will not consider
reducing or canceling the forfeiture in response to a claim of
inability to pay unless the respondent 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
respondent'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.