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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
HST Kierland LLC, )
dba Westin Kierland Resort & Spa, ) File Number: EB-08-SD-0145
Kierland Golf Club, Starwood ) NAL/Acct. No: 200932940001
Vacation Ownership Arizona
Management ) FRN: 0017995077
Licensee of WPPF349 and WQGX784 )
Scottsdale, Arizona )))))
Adopted: December 8, 2009 Released: December 10, 2009
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twelve thousand, eight hundred dollars ($12,800) to HST
Kierland LLC d/b/a Westin Kierland Resort & Spa, Kierland Golf Club,
and Starwood Vacation Ownership Arizona Management (collectively
"Westin"), the licensee of private land mobile stations WPPF349 and
WQGX784 in Scottsdale, Arizona, for willful and repeated violation of
Section 1.903(a) of the Commission's Rules ("Rules"). On December 11,
2008, the Enforcement Bureau's San Diego Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $16,000 to
Westin for operating mobile relay stations on unauthorized
frequencies. In this Order, we consider Westin's arguments that the
proposed forfeiture amount should be reduced because of its good faith
efforts to comply with the rules and its history of compliance with
2. On April 25, 2008, the San Diego Office received a complaint from a
General Mobile Radio Services ("GMRS") licensee that a business was
operating on the Family Radio Service ("FRS") frequency 462.6125 MHz
and dispatching shuttle vans for a hotel in the Phoenix area, and that
business was the Westin Kierland Resort & Spa in Scottsdale, Arizona.
Under Section 95.5(a) of the Rules, only individuals and their
immediate family are now eligible to be authorized on frequency
462.6125 MHz. Businesses may continue to operate a GMRS system if they
were first authorized before July 31, 1987, as outlined under Section
95.5(c) of the Rules.
3. On June 6, 2008, agents from the San Diego Office were in the
Scottsdale, Arizona, area and determined that the signal on frequency
462.6125 MHz was originating from Westin Kierland Resort & Spa at 6902
East Greenway Parkway, Scottsdale, Arizona. The agents determined that
467.6125 MHz and 462.6125 MHz were a repeater pair, with 462.6125 MHz as
the repeater output frequency and 467.6125 MHz as the repeater input
frequency. Frequency 467.6125 MHz is available only in the FRS pursuant to
Section 95.627 of the Rules.
4. On June 8, 2008, a San Diego agent researched FCC databases and
determined that Westin was not authorized to operate a radio station on
either frequencies of 462.6125 MHz or 467.6125 MHz. The agents returned to
the Westin Kierland Resort & Spa at 6902 East Greenway Parkway,
Scottsdale, Arizona. The agents again determined that frequencies 467.6125
MHz and 462.6125 MHz were again in use by the hotel complex.
5. On June 9, 2008, the FCC agents returned to the Westin Kierland Resort
& Spa and conducted an inspection of the private land mobile radio
facilities found at that location. The staff at the Westin Kierland Resort
& Spa showed the agents four mobile relay repeater stations that were used
at the location, on the following frequency pairs: 461.5125/466.5125 MHz,
462.6125/467.5125 MHz, 463.5125/468.5125 MHz, and 464.8750/469.8750MHz.
Equipment found operating on frequency 467.6125 MHz was not FCC certified
for FRS and had attached an external antenna which voids both FCC
certification of the transmitter and the authority to use this frequency,
as outlined under Sections 95.194(b) and 95.194(c) of the Rules.
6. On July 24, 2008, the San Diego Office issued a Letter of Inquiry
("LOI") to Westin asking if Westin had an FCC authorization for the any of
the eight frequencies in use during the inspection on June 9, 2008:
461.5125 MHz, 462.6125 MHz, 463.5125 MHz, 464.875 MHz, 466.5125 MHz,
467.6125 MHz, 468.5125 MHz, and 469.875 MHz. The LOI also asked for
information concerning any other FCC licenses that Westin might hold at
the Scottsdale facility.
7. On August 5, 2008, Westin responded to the LOI and acknowledged that it
was operating on the frequencies listed by the San Diego Office. Westin
stated that it did not hold a current or expired license for any of the
eight frequencies listed in the LOI. Westin further stated that the "four
(4) repeaters used at the Resort are intended to support segregated radio
communications within and around our property, serving the Security,
Engineering, Housekeeping, Stewarding and Guest Services departments."
Westin also stated that it did not hold any other licenses under its name,
however, "the affiliated, but separate, entities of the Kierland Golf Club
(WPPF349) and Starwood Vacation Ownership (SVO) Arizona Management (d/b/a
Kierland Villas, WQGX784) are indeed licensed." A review of those licenses
revealed that none of the frequency pairs utilized by the four mobile
relay stations in operation at the Westin Kierland Resort & Spa were
authorized by either license.
8. On December 11, 2008, the San Diego Office issued a NAL in the amount
of $16,000 to Westin. In the NAL, the San Diego Office found that Westin
apparently willfully and repeatedly violated Section 1.903(a) of the Rules
by operating mobile relay stations on unauthorized frequencies. Westin
filed a response ("Response") to the NAL on January 22, 2009. In its
Response, Westin argues that the proposed forfeiture amount should be
reduced because of it good faith efforts to comply with the Rules and its
history of compliance with the Rules.
9 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. In examining the
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
10. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the rules
applicable to their particular service and with a valid authorization
granted by the Commission. On June 6, 8, and 9, 2008, San Diego agents
determined that Westin was operating mobile units on the frequency
467.6125 MHz and a mobile relay station on the frequency 462.6125 MHz
without a license authorizing use of those frequencies. Westin
acknowledged to the San Diego Office that it was operating on those
frequencies, as well as three other frequency pairs on four land mobile
stations, even though those frequencies were not authorized by the
licenses used by Westin and its affiliates.
11. Westin argue that the forfeiture amount in this case should be reduced
because of Westin's good faith efforts to comply with the Rules by relying
on a consultant that it had retained expressly for its expertise in the
area of establishing a radio communications program in compliance with all
applicable law and regulations. Reductions based on good faith efforts to
comply generally involve situations where violators demonstrated that they
initiated measures to correct or remedy violations, or that they had
established compliance programs in place, prior to the Commission's
involvement. We find that Westin's efforts concerning attempted
compliance, by hiring a consultant to work with them to install their
radio system does not rise to the level of a compliance plan, and we find
that Westin made no effort to correct the violations until notified by the
Commission. Therefore, we see no basis for a good faith reduction.
12. We also see no basis for reduction of the forfeiture amount based on
the fact that the hired consultant ultimately failed to ensure compliance
with Rules. The Commission has long held that "licensees are responsible
for the acts and omission of their employees and independent contractors,"
and has consistently "refused to excuse licensees from forfeiture
penalties where the actions of employees or independent contractors have
resulted in violations." Westin also states that a new consultant, hired
after the inspection by the San Diego agents, effectively assisted Westin
in getting into full compliance. We note that this does not provide a
basis for a downward adjustment in the proposed forfeiture, as the
Commission has stated in the past that a licensee is expected to correct
errors when they are brought to the licensee's attention and that such
correction is not grounds for a downward adjustment in the forfeiture.
13. Westin also argues that it has a history of compliance with the Rules.
We have reviewed our records and we agree. We therefore reduce the
proposed forfeiture to $12,800.
14. We have examined the 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 Westin willfully and repeatedly
violated Section 1.903(a) of the Rules. Considering the entire record and
the factors listed above, we find that reduction of the proposed
forfeiture to $12,800 is warranted.
IV. ORDERING CLAUSES
15. 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, HST Kierland LLC d/b/a Westin
Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation Ownership
Arizona Management, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$12,800 for willfully and repeatedly violating Sections 1.903(a) of the
16. 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/Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government Lockbox
#979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment
by wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an FCC
Form 159 (Remittance Advice) must be submitted. When completing the FCC
Form 159, enter the NAL/Account number in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A (payment
type code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to HST Kierland LLC
d/b/a Westin Kierland Resort & Spa, Kierland Golf Club, and Starwood
Vacation Ownership Arizona Management at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 95.5(a).
47 C.F.R. S: 95.5(c).
47 C.F.R. S: 95.627.
47 C.F.R. S: 95.194(b) & (c).
On August 1, 2008, subsequent to the investigation by the San Diego
Office, and the receipt of the LOI, Westin was granted a special temporary
authority ("STA), call sign WQJD615, from the Commission, to operate on
461.5125 MHz, 463.5125 MHz, 464.875 MHz, 466.5125 MHz, 468.5125 MHz, and
469.875 MHz, as well as other frequencies, on a secondary non-interference
basis. On November 10, 2008, the Commission granted Westin a license, call
sign WQJN623, for operation on those frequencies.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932940001
(Enf. Bur., Western Region, San Diego Office, released December 11, 2008).
47 C.F.R. S: 1.903(a).
Westin requested, and received, an extension of time to respond to the
NAL, from the San Diego Office.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003), recon. denied, 18
FCC Rcd 25481 (2003).
See Tidewater Communications, Inc., 18 FCC Rcd 5524, 5525 (EB 2003).
We note that information provided to the Commission by the complainant in
April 2008 indicated that the unauthorized operations on 462.6125 MHz and
467.6125 MHz had previously been brought to the attention of Westin by a
private sector FCC licensee.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 (2002) ("Eure"); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972); see also, Rama Communications,
Inc., Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (EB 2008)
("[W]here lapses in compliance occur, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify the licensee's rule
See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002); see supra
Rama Communications, Inc.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.903(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2568
Federal Communications Commission DA 09-2568