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

In the Matter of                 )
                                 )
Page-Comm                        )   File No. EB-00-TS-078
                                 )
Licensee of Paging Station KPS323)   NAL/Acct. No. 200132100006
Leavenworth, Texas              ) 
                                 )
                                

                        FORFEITURE ORDER 

Adopted:  March 19, 2001                Released:  March 21, 2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture  in the  amount of  three thousand  dollars 
  ($3,000) to Page-Comm  for willful violation of Section 301  of 
  the  Communications Act  of  1934, as  amended  (``Act'')1  and 
  Section  22.3  of the  Commission's  Rules  (``Rules'').2   The 
  noted  violation involves  Page-Comm's  operation of  a  paging 
  system without Commission authorization.

2.        On November 29, 2000,  the Enforcement Bureau issued  a 
  Notice of  Apparent Liability for  Forfeiture (``NAL'') in  the 
  amount of five  thousand dollars ($5,000) to Page-Comm for  the 
  noted violation.3   Page-Comm filed  a response to  the NAL  on 
  December 21, 2000.

                         II.  BACKGROUND

3.        Page-Comm's authorization for Station KPS323 expired on 
  April  1,  1999.   On  January  5,  2000,  Page-Comm  filed  an 
  application for renewal  of the authorization for that  station 
  and requested a waiver  of Section 1.949 of the Rules.4   Page-
  Comm's waiver request indicated that Page-Comm operated  paging 
  facilities  without authorization  between  April 1,  1999  and 
  January  5,   2000.   On  February   20,  2000,  the   Wireless 
  Telecommunications  Bureau granted  Page-Comm's waiver  request 
  and reinstated its authority to operate Station KPS323.

4.        On November 29, 2000, the Enforcement Bureau issued  an 
  NAL for a forfeiture  in the amount of $5,000 to Page-Comm  for 
  operating a paging  system without Commission authorization  in 
  violation of  Section 301 of  the Act and  Section 22.3 of  the 
  Rules.  Page-Comm filed a  response to the NAL on December  21, 
  2000, seeking cancellation or reduction of the forfeiture.   In 
  this response,  Page-Comm argues that  the one-year statute  of 
  limitations in Section  503(b)(6)(B) of the Act5 precludes  the 
  Commission  from assessing  a forfeiture  for any  unauthorized 
  operation of  Station KPS323 that occurred  more than one  year 
  prior  to  the date  of  the  NAL, and  that  the  unauthorized 
  operation of  Station KPS323 for the  period from November  29, 
  1999  to  January   21,  2000,6  does  not  warrant  a   $5,000 
  forfeiture.  In addition,  Page-Comm asserts that the  proposed 
  forfeiture  should be  reduced  because the  subject  violation 
  involves only a  single license and the Commission has  imposed 
  the same forfeiture amount, $5,000, in similar cases  involving 
  multiple  paging  licenses.  Page-Comm  also  argues  that  the 
  proposed  forfeiture   should  be  reduced   because  (1)   the 
  violation  was purely  a  ministerial oversight  and  Page-Comm 
  took steps to come into compliance with the Commission's  rules 
  as soon  as it became aware that  the license had expired;  (2) 
  the proposed forfeiture significantly exceeds the value of  the 
  license; (3) the  unauthorized operation of Station KPS323  did 
  not  cause  interference or  otherwise  negatively  affect  the 
  provision  of any  other  telecommunications service;  and  (4) 
  Page-Comm  has  a  history  of  overall  compliance  with   the 
  Commission's rules.

                           III.  DISCUSSION

5.        As the NAL explicitly states, the forfeiture amount  in 
  this case  was assessed in accordance  with Section 503 of  the 
  Communications  Act of  1934,  as amended  (``Act''),7  Section 
  1.80 of  the Rules,  8 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)   (``Policy 
  Statement'').   In  examining  Page-Comm'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.9

6.        Section 301 of the Act  sets forth the general  mandate 
  that  no person  shall use  or operate  any apparatus  for  the 
  transmission of  energy or communications  or signals by  radio 
  within the  United States except under  and in accordance  with 
  the  Act  and  with a  license.   Section  22.3  of  the  Rules 
  provides,  in  pertinent part,  that  stations  in  the  Public 
  Mobile  Service  must  be  operated  with  a  valid  Commission 
  authorization.   We  conclude  that  Page-Comm  willfully   and 
  repeatedly violated Section 301 of the Act and Section 22.3  of 
  the  Rules  by  operating  Station  KPS323  without  Commission 
  authorization between April 1, 1999 and January 5, 2000.

7.        Page-Comm is  correct  that  the  one-year  statute  of 
  limitations in  Section 503(b)(6)(B) of  the Act precludes  the 
  Commission  from imposing  a  forfeiture for  the  unauthorized 
  operation of Station  KPS323 that occurred before November  29, 
  1999 (one  year prior to  the issuance of  the NAL).   However, 
  the Commission may  lawfully look at facts arising before  that 
  date  in  determining an  appropriate  forfeiture  amount.   In 
  Eastern  Broadcasting   Corp.,  10  FCC   2d  37  (1967),   the 
  Commission  held  that  it  could  consider  matters  occurring 
  outside the  statute of limitations  period in determining  the 
  appropriate  forfeiture  for  acts  that  occurred  inside  the 
  statute  of  limitations  period.   Similarly,  in   Roadrunner 
  Transportation,  Inc.,  15  FCC  Rcd  9669,  9671  (2000),  the 
  Commission considered  the fact  that the  violations began  in 
  1996, which was  outside the applicable statute of  limitations 
  period,   to  establish   the   context  for   determining   an 
  appropriate  forfeiture  amount for  violations  that  occurred 
  from June 1, 1998 to September 29, 1998.  In the instant  case, 
  we found Page-Comm  apparently liable for a forfeiture for  the 
  unauthorized operation  of Station KPS323  for the period  from 
  November 29,  1999 to January 5, 2000.   While we did not  find 
  Page-Comm apparently liable for a forfeiture for conduct  which 
  occurred prior  to November  29, 1999,  we properly  considered 
  the  fact that  the unauthorized  operation of  Station  KPS323 
  began  April 1,  1999 to  place the  violation in  context  and 
  establish the duration and continuing nature of the  violation.   
  Moreover, as  noted in  the NAL, Page-Comm  operated a  station 
  without Commission authorization under circumstances where  the 
  Commission   has  envisioned   ``more  significant   fines   or 
  forfeitures'' for violations in excess of 30 days.10  Thus,  we 
  reject Page-Comm's argument that its unauthorized operation  of 
  Station  KPS323  for  the period  from  November  29,  1999  to 
  January 20, 2000 does not warrant a $5,000 forfeiture. 

8.        In addition,  we  disagree with  Page-Comm's  assertion 
  that  the proposed  forfeiture should  be reduced  because  the 
  Commission has  imposed the  same $5,000  forfeiture amount  in 
  similar  cases  involving multiple  paging  licenses.   In  the 
  cases cited by Page-Comm,11  we declined to engage in a  strict 
  mathematical  exercise  of  multiplying  the  base   forfeiture 
  amount  times  the number  of  stations  involved  and  instead 
  determined that the number of stations should be treated as  an 
  aggravating factor warranting  an increased forfeiture where  a 
  larger number  of stations is  involved.12  The Commission  has 
  previously  used this  approach  in other  contexts,13  and  we 
  believe  that it  was appropriately  used  in this  context  as 
  well.  

9.        Of Page-Comm's remaining arguments, only its history of 
  compliance  argument  warrants  mitigation  of  the  forfeiture 
  amount.  While we recognize that unauthorized operation in  the 
  context of  failure to  file a  renewal application  is not  as 
  serious as  in other contexts (e.g.,  pirate radio), that  fact 
  has been  reflected in  the original  downward adjustment  from 
  the  $10,000  base  amount.14  We  do  not  believe  a  further 
  reduction  on the  basis that  the failure  to file  a  renewal 
  application  was a  ``ministerial oversight''  is  appropriate, 
  particularly  given the  Commission's statement  quoted  above.  
  Additionally,  Page-Comm's  remedial  actions  to  correct  the 
  violation,  while commendable,  are  not a  mitigating  factor.  
  See Station KGVL, Inc.,  42 FCC 2d 258, 259 (1973).   Regarding 
  Page-Comm's  argument  that  the  proposed  forfeiture   amount 
  exceeds the value of  the license, we note that Page-Comm  does 
  not  claim  that  payment  of  the  forfeiture  will  create  a 
  financial  hardship  or  provide  documentation  to  support  a 
  financial hardship claim.  Further, an absence of  interference 
  does not  entitle Page-Comm  to a reduction  of the  forfeiture 
  amount under the Commission's downward adjustment criteria  for 
  forfeitures.15  However, after considering Page-Comm's  overall 
  history of compliance with the Commission's rules, we  conclude 
  that it is appropriate to reduce the forfeiture from $5,000  to 
  $3,000.

10.       We  have  examined  Page-Comm's  response  to  the  NAL 
  pursuant to  the statutory  factors above,  and in  conjunction 
  with the Policy Statement as well.  As a result of our  review, 
  we conclude  that Page-Comm  has failed  to provide  sufficient 
  justification  for canceling  the proposed  forfeiture  amount, 
  but has provided justification for reducing it to $3,000.

                      IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
  the Rules,16 Page-Comm  IS LIABLE FOR A MONETARY FORFEITURE  in 
  the amount of  three thousand dollars ($3,000) for operating  a 
  paging system without  Commission authorization in willful  and 
  repeated violation of Section  301 of the Act and Section  22.3 
  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 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  the NAL/Acct. No. 200132100006.   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  Page-
  Comm,  Attn.: Kent  N. Redford,  P.O.Box 493,  Leavenworth,  KS 
  66048,  and  its counsel,  Pamela  Gaary,  Esq.,  Lukas,  Nace, 
  Gutierrez  & Sachs,  Chartered, 1111  19th Street,  N.W.  Suite 
  1200, Washington, D.C.  20036.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1   47 U.S.C.  301.  

  2   47 C.F.R.  22.3.  

  3   Page-Comm, DA 00-2666 (Enf. Bur., rel. November 29, 2000). 

  4   47 C.F.R.  1.949. 

  5   Section  503(b)(6)(B)  of  the  Act  provides  that  ``[n]o 
forfeiture penalty  shall be  determined or  imposed against  any 
person under this  subsection if   such person does  not hold  a 
broadcast station license issued under title III of this Act  and 
if the violation charged occurred more  than 1 year prior to  the 
date of issuance  of the  required notice or  notice of  apparent 
liability.''  47 U.S.C.  503(b)(6)(B). 

  6   Page-Comm  states  that  the  Wireless  Bureau  granted  it 
Special Temporary  Authority  on  January 21,  2000  to  continue 
operating Station KPS323.

  7   47 U.S.C.  503(b).

  8   47 C.F.R.  1.80.

  9   47 U.S.C.  503(b)(2)(D).

  10  See Biennial Regulatory Review -- Amendment of Parts 0,  1, 
13, 22,  24,  26,  27,  80,  87, 90,  95,  97,  and  101  of  the 
Commission's Rules to Facilitate the  Development and Use of  the 
Universal Licensing  System  in the  Wireless  Telecommunications 
Services, 14 FCC Rcd 11476, 11485-11486 (1999).   

  11  Data Investments,  Inc. d/b/a Star  Communications, DA  00-
2668 (Enf. Bur., rel. November 29, 2000); Joe L. Ford d/b/a  Ford 
Communications, DA 00-2665 (Enf. Bur., rel. November 29, 2000).

  12  See e.g., Commercial Radio Service Corp., DA 00-2755  (Enf. 
Bur., rel. December 11, 2000) (treating the number of stations as 
an aggravating factor and assessing a $6,000 forfeiture where the 
licensee   operated    eleven   stations    without    Commission 
authorization after expiration of the licenses).  

  13  See Roadrunner Transportation, Inc., 15 FCC Rcd 9669,  9672 
(2000)  (declining  to  use  a  strict  mathematical  formula  of 
multiplying  the  base  forfeiture  amount  for  an  unauthorized 
transfer of  control  times  the number  of  stations  involved); 
Central Illinois Public  Service Company, 15  FCC Rcd 1750,  1753 
(1999) (same). 

  14  Page-Comm, DA 00-2666 (Enf. Bur., rel. November 29, 2000). 

  15  See Policy  Statement, 12  FCC Rcd  at 17116;  47 C.F.R.   
1.80(b),  note  to  paragraph  (b)(4),  Section  II.   Adjustment 
Criteria for Section 503 Forfeitures.   

     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.