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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ARVADA EXCAVATING COMPANY, INC. ) File No. EB-00-
Trunked Business Station WPIM675 )
Denver, Colorado ) NAL/Acct. No.
Adopted: April 21, 2000 Released: April 24, 2000
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) against Arvada Excavating Company, Inc. (``Arvada''),
licensee of Trunked Business Station WPIM675, for willful
violation of former Section 90.113 of the Commission's Rules
(``Rules''), 1 and Section 301 of the Communications Act of 1934,
as amended (``Act'').2 The noted violations involve Arvada's
operation from an unauthorized location.
2. On September 22, 1999, the Commission's Denver,
Colorado, Field Office (``Denver Office'') issued the
referenced Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of four thousand dollars
($4,000) to Arvada for the noted violations.3 Arvada
filed a response to the NAL on October 22, 1999.
3. Arvada is licensed to operate Trunked Business Station
WPIM675 from a site located on Eldorado Mountain in Boulder
County, Colorado (``The Eldorado Mountain site'') on frequencies
936.48750 and 936.500000 MHz. Arvada uses Station WPIM675 to
dispatch its vehicles.
4. On September 23, 1998, FCC agents from the Denver
Office and other FCC offices were investigating complaints
concerning land mobile operation in the Denver area. As part of
the investigation, FCC agents interviewed Michael Tony Westall,
who owns American Communications Systems, Inc. (``ACS''), a land
mobile communications provider. During the interview, Mr.
Westall stated that he had placed a station on Lower Squaw
Mountain in Jefferson County, Colorado (``The Squaw Mountain
site''), which was not authorized to operate at that location.
On the same date, an FCC agent inspected a facility managed by
ACS at the Squaw Mountain site and measured the frequency of that
facility as 936.500000 MHz. According to the Commission's
license records, no station is authorized to operate on
936.500000 MHz at the Squaw Mountain site.
5. On September 23, 1998, Commission agents also inspected
facilities managed by ACS at the Eldorado Mountain site, which is
about 20 miles from the Squaw Mountain site. The facilities at
the Eldorado Mountain site included a transmitter for station
WPIM675 which operated on 936.48750 MHz but did not include any
transmitter which operated on 936.500000 MHz.
6. According to the Commission's license records, Arvada
holds the exclusive authorization in the Denver area to operate
on 936.50000 MHz. On September 24, 1998, FCC agents interviewed
Mike Ursetta, who is the owner and manager of Arvada. Mr.
Ursetta stated, inter alia, that he uses Station WPIM675 in his
excavating business, that ACS is his service contractor for that
station and that he leases the transmitters for WPIM675 from ACS.
7. On September 22, 1999, the District Director, Denver
Field Office, issued the subject NAL to Arvada for operating from
a location not authorized by its license, in repeated and willful
violation of former Section 90.113 an of the Rules and Section
301 of the Act. On October 22, 1998, the Commission received
Arvada's response to the NAL, in which Arvada requested
cancellation of the proposed forfeiture. Arvada asserted that it
``had nothing to do with'' the operation of the transmitter at
the Squaw Mountain site on 936.50000 MHz. According to Arvada,
ACS moved a transmitter from the Eldorado Mountain site to the
Squaw Mountain site and then ``inadvertently selected a repeater
box that had Arvada's frequency programmed into it.'' Arvada
states further that it ``never authorized ACS to relocate the
WPIM675 repeater . . . [and] . . . was not aware of any such
relocation'' and that ``ACS never intended to relocate facilities
licensed to Arvada.''
8. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503 of the
Act4, Section 1.80 of the Rules,5 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 Arvada'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. 47 U.S.C. § 503(b)(2)(D).
9. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a license
in that behalf granted under the provisions of this Act.''
Former Section 90.113 of the Rules provided that stations in the
Land Mobile Radio Services must be operated in accordance with a
proper authorization granted by the Commission.
10. Arvada admits in its response that a repeater operating
on 936.50000 MHz, the WPIM675 frequency, is installed at the
Squaw Mountain site. Arvada cannot escape responsibility for its
operation from an unauthorized location by blaming ACS and
claiming that it did not know about ACS's actions. See Section
90.427 of the Rules.6 Arvada is responsible for whatever actions
ACS takes as the service contractor for station WPIM675. As the
licensee of WPIM675, Arvada has an affirmative duty to maintain
control over that station. See Section 310(d) of the Act.7 Part
of Arvada's duty to maintain control over Station WPIM675 is
keeping itself informed about any changes in the operating
parameters of that station, such as relocation of its
11. Arvada's claim that ACS did not intend to relocate
Station WPIM675 to the Squaw Mountain site is not credible. As
the licensee of Station WPIM675, Arvada holds the exclusive
authorization in the Denver area for frequency 936.50000 MHz. As
of September 23, 1998, no transmitter operating on that frequency
was installed at WPIM675's authorized site but such a transmitter
had been installed by ACS at the Squaw Mountain site. The
apparent purpose of such a transmitter at the Squaw Mountain site
is to serve as apparatus for Station WPIM675. Neither ACS nor
Arvada has offered any alternative explanation for the existence
of a transmitter operating on the frequency 936.50000 MHz at the
Squaw Mountain site.
12. We find that Arvada's operation from an
unauthorized location on the frequency 936.50000 MHz was in
repeated and willful violation of Section 301 of the Act and
former Section 90.113 of the Rules. 8 We have examined Arvada'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 Arvada has failed to justify
cancellation or reduction of the proposed forfeiture amount.
Therefore, we affirm the forfeiture of four thousand dollars
IV. ORDERING CLAUSES
13. 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,9 Arvada Excavating Company, Inc., IS
LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
dollars ($4,000) for the repeated and willful violation of
Section 301 of the Act and former Section 90.113 of the Rules,
which prohibit unauthorized operation.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within thirty (30) days
of the release of this Order. If the forfeiture is not paid
within the specified period, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.10 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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. 915DV0007.
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.
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to Arvada
Excavating Co., Inc., 7714 Reno Drive, Arvada, Colorado 80002,
and to its counsel, Robert J. Keller, Esq., 4200 Wisconsin
Avenue, N,W., -- PMB#106-233, Washington, D.C. 20016-2157.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Effective on February 12, 1999, the station authorization
requirement formerly contained in Section 90.113 of the Rules, 47
C.F.R. § 90.113, was moved to Section 1.903 of the Rules, 47
C.F.R. § 1.903. See Biennial Regulatory Review - Amendments of
Parts 0, 1, 13, 22, 24 , 26, 27, 80, 87 , 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, 13 FCC Rcd 21027 (1998).
2 47 U.S.C. § 301.
3 Notice of Apparent Liability For Forfeiture, NAL Acct. No.
915DV0007 (Compl. and Inf. Bureau, Denver Office, Released
September 22, 1999).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 C.F.R. § 90.427
7 47 U.S.C. § 310(d)
88 The word ``willfully'' as employed in Section 503 of the Act
does not require that the violation in question be
intentional. It is necessary only that a licensee knew it was
doing the act in question. See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
9 47 C.F.R. §§ 0.111, 0.311 and 1.80(f)(4).
10 47 U.S.C. § 504(a).