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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
ESP Leasing Corporation File Number: EB-05-LA-071
Brookfield, Illinois NAL/Acct. No.: 200632900006
Operator of Unlicensed Land Mobile FRN: 0004161469
Transmitter Near Las Vegas, Nevada
Adopted: December 26, 2006 Released: December 28, 2006
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of six thousand dollars ($6,000) to ESP Leasing Corporation
("ESP"), for willful and repeated violations of Section 301 of the
Communications Act of 1934, as amended, ("the Act"). On February 9,
2006, the Los Angeles Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $10,000 to ESP after determining
that ESP operated an unlicensed land mobile transmitter on 856.3625
MHz near Las Vegas, Nevada. In this Order, we consider ESP's requests
that the forfeiture amount be reduced given the nature of the
violation, and ESP's record of compliance as a Commission licensee.
2. On February 25, 2005, while conducting a routine audit of installed
radio equipment on Black Mountain, in Las Vegas, Nevada, an agent of
the Enforcement Bureau's Los Angeles Office discovered six, 800 MHz,
land-mobile transmitters installed in rented space in one of the
mountaintop buildings. The callsign found on the equipment was
WPOX419. Six frequencies were listed on the six transmitters,
including 856.3625 MHz, and one of the transmitters was in operation.
The name "ESP Leasing" and a telephone number were also displayed on
the transmitters. The agent noted that, for the Black Mountain
location, no record for the transmitters could be found in the
Commission's database of licensed transmitters.
3. On March 2, 2005, the Los Angeles agent researched the Commission's
records for the callsign and frequency information displayed on the
transmitters and determined that the transmitters were associated with
callsigns WPOX419 and WPOX417. The licensed location for these
stations, however, is Mt. Potosi, Nevada, a site approximately 20
miles from Black Mountain. The Commission's records showed that ESP
was the licensee of WPOX419 and WPOX417, until December 14, 2004, when
the licenses and transmitters were assigned to AIRPEAK Communications,
Inc. The owner of the rented building on Black Mountain reported that
ESP had been paying the rent for the transmitters' space since April
4. On April 27, 2005, Los Angeles agents again visited the Las Vegas,
Nevada area. While monitoring the frequencies of the transmitters
which had been found on Black Mountain, the agents heard significant
traffic on 856.3625 MHz, without callsign identification. The agents
used direction finding techniques to locate the source of the signals
as Black Mountain. The agents then contacted a representative of
AIRPEAK, who advised that AIRPEAK had recently acquired the WPOX417
and WPOX419 licenses from ESP but had not yet constructed new
transmitters on Mt. Potosi. The agents then contacted ESP, and a
representative confirmed that the current operations on 856.3625 MHz
from Black Mountain were from ESP's transmitter, and that the
operations had been on-going for many months. When agents asked by
what authority the transmitter was being operated, the ESP
representative asked for an opportunity to research ESP's records. On
April 28, 2005 the Commission's agents again monitored unidentified
traffic on 856.3625 MHz, and again confirmed with direction finding
techniques that Black Mountain was the source. Later that day, the
representative from ESP contacted the agents and advised that several
transmitters had been mistakenly located on Black Mountain, and that
ESP would cease operations with them as soon as possible.
5. On August 25, 2005, the Los Angeles Office issued a Letter of Inquiry
("LOI") to ESP concerning ESP's ownership and operation of the
unlicensed transmitters on Black Mountain. ESP sent a response
("Response") to the LOI on September 9, 2005. In its Response, ESP
stated that it had mistakenly relocated the six transmitters to Black
Mountain while it was still the licensee, and had subsequently
assigned its license for the frequencies, but had been operating the
transmitters from Black Mountain since approximately September 2004.
ESP also stated that it ceased operation of the transmitters on April
6. On February 9, 2006, the Los Angeles Office issued a NAL in the amount
of $10,000 to ESP. ESP filed a response to the NAL on March 7, 2006
("Response"). In the NAL, the Los Angeles Office determined that ESP
apparently willfully and repeatedly violated Section 301 of the Act by
operating an unlicensed land mobile transmitter on 856.3625 MHz near
Las Vegas, Nevada. In its Response, ESP does not dispute the facts in
the NAL, but requests a reduction in the forfeiture amount based on
the fact that ESP at one point in time had a license for 856.3625 MHz
at another site in the same Las Vegas market; that the operation at
the unauthorized location caused no known interference; and because of
ESP's history of FCC rule compliance.
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, 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) ("Forfeiture Policy
Statement"). In examining ESP'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
8. Section 301 of the Act requires 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. While it still held
licenses WPOX419 and WPOX417, ESP relocated its transmitters without
authority to Black Mountain, Nevada, and, from December 15, 2004, to
April 28, 2005, ESP operated a transmitter on Black Mountain without a
9. ESP does not dispute the facts detailed in the NAL. Instead, it
requests that the forfeiture amount be reduced because ESP previously
held a license for operation on 856.3625 MHz at a different location
but in the same market where the violation took place. We note that
ESP's authorization to operate on 856.3625 MHz was assigned to AIRPEAK
on December 14, 2004, and, therefore, ESP was no longer authorized to
operate on that frequency. ESP did not have an authorization to
operate on 856.3625 MHz beginning December 15, 2004, and it did not
stop its unauthorized operation until notified by the Los Angeles
Office on April 27, 2005. ESP acknowledged in its response to the Los
Angeles Office's LOI that while it still held the authorizations for
WPOX419 and WPOX417, in September 2004, it relocated the transmitters
for those stations without authority. As noted in the NAL, that
unauthorized relocation in September 2004 violated Section 1.903(a) of
the Rules. We do not agree that we should reduce the proposed
forfeiture to $4,000 because, as ESP opines, "the violation might
properly be characterized as operation at an unauthorized location,
with a base forfeiture of $4,000 . . . ." To do so ignores the fact
that ESP had no authorization to operate. However, we do find that
that ESP's unlicensed operation is not analogous to the "intentional
unlicensed operation of a `pirate' station operator who operates in
flagrant violation of Commission Rules." We therefore reduce ESP's
forfeiture amount to $8,000.
10. ESP also alleges that a downward reduction is warranted because the
unlicensed operation did not cause interference. We disagree. An
absence of interference during its unlicensed operation does not
entitle ESP to a reduction of the forfeiture amount under the
Commission's downward adjustment criteria for forfeitures.
11. ESP also requests that the forfeiture amount be reduced because it has
a history of compliance as a Commission licensee. We have reviewed our
records and we find no instances of ESP having received a forfeiture
or violation notice. Consequently, we reduce ESP's forfeiture amount
by another $2,000.
12. We have examined ESP's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that ESP willfully
and repeatedly violated Section 301 of the Act. Considering the
entire record and the factors listed above, we find that reduction of
the proposed forfeiture is warranted, given the circumstances
surrounding ESP's unauthorized operation and its compliance record
with the Commission's Rules. Accordingly, the forfeiture amount is
reduced from ten thousand dollars ($10,000) to six thousand dollars
IV. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, ESP Leasing
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$6,000 for willfully and repeatedly violating Section 301 of the Act.
14. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to ESP Leasing
Corporation at its address of record, and Elizabeth R. Sachs, Esquire,
Lukas, Nace, Gutierrez & Sachs, Chartered, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 U.S.C. S 301.
The other frequencies listed were 857.3625 MHz, 858.3625 MHz, 859.3625
MHz, 860.3625 MHz and 859.6375 MHz.
The callsign WPOX419 was listed in the Commission's Universal Licensing
Service ("ULS") database as licensed to AIRPEAK Communications, LLC, which
authorized frequencies 858.3625 MHz, 859.3625 MHz and 860.3625 MHz on Mt.
Potosi. Another AIRPEAK license, WPOX417, authorized 856.3625 MHz and
857.3525 MHz, also at Mt Potosi.
See Application Nos. 0001888410 and 0001970542.
Prior to the license assignment, ESP executed, and filed with the
Commission, a "De Facto Transfer Lease" of the licenses to AIRPEAK which
commenced on October 8, 2004 and expired on April 6, 2005.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632900006
(Enf. Bur., Western Region, Los Angeles Office, released February 9,
47 U.S.C. S 301.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 1.903(a).
Response at 2.
Gateway Security Systems, Inc., 18 FCC Rcd 24026, 24029 (EB 2003).
47 C.F.R. S 1.80(b), note to paragraph (b)(4), Section II. Adjustment
Criteria for Section 503 Forfeitures. See Page-Comm, 16 FCC Rcd 6842, 6845
(EB 2001). See also New York Radio Service, 19 FCC Rcd 10704 (EB 2004).
47 U.S.C. S 301.
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2588
Federal Communications Commission DA 06-2588