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

                       
In the Matter of                        )
                                   )
ARVADA EXCAVATING COMPANY, INC.         )         File No. EB-00-

TS-010
Trunked Business Station WPIM675             )         
Denver, Colorado                        )         NAL/Acct.   No. 

915DV0007
                                     
                         FORFEITURE ORDER

     Adopted:  April 21, 2000           Released: April 24, 2000

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     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.

                         II.  BACKGROUND

     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.''

                        III.  DISCUSSION

     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 
transmitter.

     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 

($4,000).
     
                      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).