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

In the Matter of                             )
Notice of Apparent Liability for Forfeiture of         )
ENSERCH CORPORATION                     )    File No. 920EF0033
Licensee of 23 Fixed Microwave Service Stations   )
and 147 Private Land Mobile Radio Service Stations     ) 
Operating throughout Texas.                  )

                        FORFEITURE ORDER

     Adopted:  July 24, 2000                 Released:  July 27, 

By the Commission:

                        I.  INTRODUCTION

     1. In this order, we find that ENSERCH Corporation 
(``ENSERCH'')1  transferred  control  of  152  licenses2  without 
obtaining the requisite authority from the Commission, in willful 
and repeated violation  of Section 310(d)  of the  Communications 
Act of 1934, as amended (``Act''), 47 U.S.C.  310(d), and former 
Section 101.53 of  the Commission's rules,  47 C.F.R.   101.53.3  
We conclude, based upon our review of ENSERCH's August 23,  1999, 
``Response to  Notice  of  Apparent  Liability  for  Forfeiture'' 
(``ENSERCH Response''), that ENSERCH  is liable for a  forfeiture 
in the amount of $150,000.                         II.  BACKGROUND

     2.   On August  5, 1997,  ENSERCH,  a natural  gas  company, 
merged  with  Texas  Utilities   Company  ("TUC").   TUC   issued 
15,861,272 shares  of  common  stock,  worth  approximately  $565 
million, to former holders of ENSERCH common stock.  As a  result 
of the transaction, ENSERCH became  a wholly owned subsidiary  of 
TUC.  Prior to consummating the merger, however, ENSERCH did  not 
request or obtain Commission consent to the substantial  transfer 
of control of its stations to TUC.

     3.   Eric H. Peterson, a partner in the law firm that serves 
as TUC's General Counsel, states that he and counsel for  ENSERCH 
undertook extensive efforts  to obtain  the necessary  regulatory 
approvals for  the merger.   Mr. Peterson  declares that  ``those 
responsible for the transaction failed to focus on the fact  that 
ENSERCH held FCC licenses and that, consequently, the transfer of 
control of ENSERCH would also  require prior FCC consent.''   See 
ENSERCH Response,  Exhibit  1, p.  2.   He speculates  that  this 
failure resulted because TUC was under pressure to consummate the 
transaction quickly because  of rumors that  another company  was 
interested in  acquiring  ENSERCH,  and that  the  due  diligence 
effort therefore did not include a review of ENSERCH's licenses.

     4.   In  October  1997,   Texas  Utilities  Services,   Inc. 
("TUS"), another subsidiary of TUC,  sought to modify one of  its 
private land mobile  licenses to  add two  frequencies that  were 
licensed to ENSERCH  at a  location just two  blocks away.   When 
frequency coordinators questioned the  proposed short spacing  of 
the  stations,  ENSERCH  employee  Robert  Upperman  ("Upperman") 
directed a  letter,  dated  January 22,  1998,  to  the  Wireless 
Telecommunications Bureau  to  clarify the  status  of  ENSERCH's 
licenses.  In  that letter,  Upperman represented  that  "ENSERCH 
Corporation is  a Texas  Utilities  Company.  Please  change  the 
license to  read: Texas  Utilities Services,  Inc."  See  ENSERCH 
Response, Exhibit 5.  The Upperman  letter gave TUS's address  as 
ENSERCH's new address.  One day  later, on January 23, 1998,  TUS 
employee Rudolph Perry ("Perry") directed a similar letter to the 
Commission, stating:   "ENSERCH  Corporation is  a  wholly  owned 
Texas Utilities company [sic]."  See ENSERCH Response, Exhibit 6.  
Perry stated in his letter that the Commission should contact him 
or Upperman for further information.

     5.   By letter, dated  February 20,  1998, the  Commission's 
staff informed Mr. Upperman:

     Your  name  change  indicates  a  possible  change   in 
     ownership, corporate structure, or control, which would 
     require a modification as  defined in Rule 90.135.   If 
     ownership, corporate structure, or control has changed, 
     you must file FCC Forms 600  and 1046, or FCC Form  490 
     or FCC Form 703 as appropriate.

See letter dated  February 20,  1998 from  Informal Complaints  & 
Public  Inquiry  Branch,  Enforcement  and  Consumer  Information 
Division,  Wireless  Telecommunications  Bureau,  to  Robert   E. 
Upperman (ENSERCH  Response, Exhibit  8).   Robert B.  Morris,  a 
senior engineer at TUS, states  that he believes he received  the 
February 20, 1998  letter.  Mr. Morris  states, however, that  he 
did not believe a  response to the  letter was necessary  because 
TUS no  longer  needed  the  two licenses  for  which  they  were 
applying.  Mr. Morris claims that  it never occurred to him  that 
the letter concerned a broader transfer of control issue  because 
it was his  understanding that  so long as  ENSERCH remained  the 
licensee, changes in  the ownership  of ENSERCH  did not  require 
Commission approval.  ENSERCH admits, ``to someone who understood 
the FCC  rules regarding  transfers of  control, the  FCC  Letter 
would  have  prompted  an  immediate  response.''   ENSERCH  also 
concedes  that  the  persons  who  were  involved  in   licensing 
activities for TUS and ENSERCH did not understand the transfer of 
control provisions of  the Act  and the  Commission's rules.  See 
ENSERCH Response, p. 5.  

     6.   At some unspecified time later, Mr. Morris read a trade 
journal article  about the  Commission  imposing a  penalty  upon 
another  utility  that  had   merged  without  prior   Commission 
approval.  Mr. Morris then raised questions about the ENSERCH/TUC 
merger with his superiors.  On August 20, 1998, counsel submitted 
two separate applications  requesting Commission  consent to  the 
substantial transfer of control  of ENSERCH's 23 fixed  point-to-
point  microwave  and  147  Private  Land  Mobile  Radio  Service 
(``PLMRS'')  licenses,  nunc  pro  tunc.   The  Commission  staff 
authorized the transfer of control  of the 147 PLMRS licenses  on 
September 8,  1998,  and  the  Commission  staff  authorized  the 
transfer of  control of  the  23 fixed  point-to-point  microwave 
licenses on  April  30,  1999.   The  authorization  for  the  23 
microwave licenses  indicated that  it was  without prejudice  to 
possible enforcement action.  No such condition was placed on the 
authorization for the land  mobile licenses.  The  authorizations 
did not indicate that  the grant of  Commission consent was  nunc 
pro tunc.4

     7.   On July 23, 1999, the  Commission released a Notice  of 
Apparent Liability for a Forfeiture  (``NAL'') in which it  found 
that ENSERCH  had  apparently  violated  Section  310(d)  of  the 
Communications Act  of  1934, as  amended,  47 U.S.C.    310(d).  
ENSERCH Corporation, 16  Comm. Reg. 864  (1999).  The  Commission 
proposed a $510,000  forfeiture against  ENSERCH.  ENSERCH  filed 
its response on August 23, 1999.

     8.    Frank Donovan, Manager of Telecommunications for  TUS, 
admits ``that the failure to seek prior FCC consent to the merger 
or more  quickly  to respond  to  FCC correspondence  shows  that 
greater attention  to  such  matters must  be  taken  by  company 
executives with appropriate matters referred to legal  counsel.''  
See ENSERCH Response, Exhibit 4.  As a result, all correspondence 
from the Commission, except for  notices of renewal of  licenses, 
must be forwarded  to the Manager  of Telecommunications and  the 
Transport Technology Manager.   If either  manager has  questions 
about the correspondence, they  must refer the correspondence  to 
the Vice President, Information Technology, and to counsel.   Mr. 
Peterson, in his firm's role as general counsel, has now required 
that FCC  licensing  will now  be  a  separate item  on  the  due 
diligence for every merger or acquisition, even if the companies, 
on their face, are not involved in communications activities.

                        III.  DISCUSSION

     9.   In its  Response to  the NAL,  ENSERCH states  that  it 
``does  not  contest  the   Commission's  determination  that   a 
violation of its rules  occurred or even, if  found to be  within 
the  relevant  statute  of  limitations,  that  consistent   with 
Commission  practice,  a   monetary  penalty  is   appropriate.''  
ENSERCH Response, p. 7.  It argues, however, that the  forfeiture 
is barred by  the statute  of limitations and  that the  proposed 
forfeiture amount exceeds the statutory maximum.  It also  argues 
that a  forfeiture cannot  be imposed  for the  147 private  land 
mobile licenses  because no  condition contemplating  enforcement 
action was placed on the Commission's consent to the transfer  of 
control.  ENSERCH devotes  most of its  response to arguing  that 
the  $510,000  forfeiture  proposed  in  the  NAL  is  excessive.  
ENSERCH argues that the proposed forfeiture is inconsistent  with 
precedent, that the  Commission placed undue  weight on the  fact 
that the transfer involved 170 stations, and that the  Commission 
placed  undue  weight  on  aggravating  factors  while   ignoring 
mitigating factors.  For  the reasons discussed  below, we  lower 
the amount to $150,000.

     10.  We reject  ENSERCH's  statute of  limitations  argument 
because it misconstrues the nature of the violation and the  NAL.  
Although the  Commission may  not issue  a forfeiture  against  a 
wireless licensee for  a violation  that occurred  more than  one 
year prior to the  issuance of the  notice of apparent  liability 
(47 U.S.C.   503(b)(6)(B)), Commission precedent  holds that  an 
unauthorized transfer of control  is a continuing violation  that 
does not end until  the Commission grants  a transfer of  control 
application.  Benito Rish, 10 FCC Rcd 2861 (1995), see also Puget 
Sound Energy, Inc., 14  FCC Rcd 9111, 9113  (WTB 1999).  In  this 
case, the unauthorized substantial  transfer of control began  on 
August 5, 1997 and continued until, at the earliest, September 8, 
1998, when the first transfer of control application was granted.  
ENSERCH thus is liable for a forfeiture for the period from  July 
23, 1998, or  one year from  the day when  the NAL was  released, 
until, at the earliest, September 8, 1998.

     11.  Alternatively, ENSERCH argues  that the Commission  may 
not rely  upon circumstances  that occurred  more than  one  year 
prior to the issuance of the NAL.  While the Commission may  not, 
in this case, find ENSERCH liable for violations committed  prior 
to July 23, 1998, it may consider 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 acts of a station manager that occurred outside 
the  statute  of  limitations  in  determining  the   appropriate 
forfeiture  for  acts  that   occurred  inside  the  statute   of 
limitations.  The Commission held that it could consider  matters 
occurring  outside   the  statute   of  limitations   period   in 
determining a licensee's  ``degree of culpability.''   Similarly, 
in Cate Communications  Corporation, 60  RR 2d  1386 (1986),  the 
Commission considered facts prior  to the statute of  limitations 
period in  considering the  appropriate forfeiture  amount for  a 
continuing transfer of  control.  The Commission  held that  such 
facts placed ``the violations  in context, thus establishing  the 
licensee's degree of culpability and the continuing nature of the 
violations.''  Similarly, in  this case, we  used the facts  that 
took place prior to  July 23, 1998 to  establish the context  for 
assessing an  appropriate forfeiture  amount for  the  violations 
that were subject  to a  forfeiture from July  23, 1998  forward.  
Accordingly, ENSERCH's argument that the NAL violated the statute 
of limitations is rejected.

     12.  ENSERCH also  argues that  the forfeiture  exceeds  the 
$82,500 maximum forfeiture  for any single  action or failure  to 
act.5  See 47 U.S.C.  503(b)(2)(C), 47 C.F.R.  1.80(b)(5)(iii).  
We  reject  that  argument  because  each  station  that  ENSERCH 
transferred without  Commission approval  constitutes a  separate 
violation of the  Act and the  Commission's rules.  See  Courtesy 
Communications, Inc., 14 FCC Rcd 4198, 4200 (1999).  The  $82,500 
statutory maximum represents the  maximum forfeiture that can  be 
issued ``for  any  single act  or  failure to  act  described  in 
paragraph  (1)   of  this   subsection.''    See  47   U.S.C.    
503(b)(2)(C).6  Section  503(b)(1)(B) of  the Act  refers,  inter 
alia, to a failure ``to comply with any of the provisions of this 
Act or of any rule, regulation, or order issued by the Commission 
under this Act  . .  . .''   Because ENSERCH  committed over  100 
violations, the total proposed forfeiture was, in fact, below the 
maximum permitted under the Act.

     13.   Third,  ENSERCH  argues  that  no  forfeiture  may  be 
imposed for the 147 private land mobile stations because  ENSERCH 
requested approval of the transfer nunc pro tunc and the grant of 
the  transfer  of  control   application  did  not   specifically 
contemplate  enforcement  action.   In  support,  ENSERCH   cites 
Verilink Corp. v. Tellabs Industries,  Inc., 60 RR 2d 1683,  1689 
(1986).  ENSERCH Response,  pp. 11-12.  We  reject that  argument 
because while  ENSERCH requested  that  the transfer  of  control 
application be granted nunc pro tunc, the staff did not grant the 
applications on that basis.  The Commission's database  indicates 
with respect  to  the  transfer of  control  application,  ``This 
Transfer of control authorized on 9/8/98 for the outstanding term 
of the  license.''   If  the  staff had  intended  to  grant  the 
transfer of control  on a nunc  pro tunc basis,  the staff  would 
have authorized the transfer of control as of August 5, 1997, the 
date  the  transfer  took  place.   Moreover,  in  Verilink,  the 
recipient of the NAL  had apparently received  an oral waiver  of 
the  rule  that  was  the  subject  of  the  notice  of  apparent 
liability. Accordingly,  the  Commission concluded  that  it  was 
improper to  find a  rule  violation under  those  circumstances.  
While the  grant  of  consent  to  the  transfer  of  control  of 
ENSERCH's private  land  mobile  stations  did  not  specifically 
contain  a  condition  mentioning  enforcement  action,  such   a 
condition  was  not  a  necessary  prerequisite  for  enforcement 
action, since  ENSERCH  was the  licensee  of the  stations  both 
before and after the transfer.

     14.   ENSERCH reports, and the Commission's records confirm, 
that 18 of  the private land  mobile stations that  were part  of 
ENSERCH's transfer of control  application were in fact  licensed 
after the transfer of control  took place.  ENSERCH Response,  p. 
11 n.35.7  Accordingly,  we find that  there was no  unauthorized 
transfer of control of those 18 stations.

     15.  ENSERCH  also  argues  that  the  $510,000   forfeiture 
proposed in the NAL  is excessive, its actions  were not, as  the 
NAL concluded,  ``cavalier,''  and  the  proposed  forfeiture  is 
inconsistent  with  the  forfeiture   imposed  by  the   Wireless 
Telecommunications Bureau  in  Puget Sound  Energy,  Inc.   After 
reviewing the record, we agree that ENSERCH did not intentionally 
violate the Commission's  rules. Moreover, after  we issued  this 
NAL, we adopted Central Illinois  Public Service Company, 15  FCC 
Rcd 1750, 1753 (1999), in which we declined to engage in a strict 
mathematical exercise of multiplying a base forfeiture amount for 
a violation times the number of stations, the calculation used in 
this case.  In Central Illinois, we explained that continuing  to 
use this method ``would result in an excessive forfeiture  amount 
and would  be  inconsistent  with  prior  enforcement  actions.''  
Instead, we  determined  that  the number  of  stations  involved 
should  be  treated  as  an  aggravating  factor  warranting   an 
increased  forfeiture.   In  light   of  this,  we  believe   the 
forfeiture amount  in the  instant case  should be  significantly 

     16.    However,  we  continue  to  be  troubled  greatly  by 
ENSERCH's  failure   to   respond  to   a   specific   Commission 
notification that, in  its own  words, ``would  have prompted  an 
immediate response'' from ``someone who understood the FCC  rules 
regarding transfers  of control.''   The Commission  expects  all 
licensees promptly  to take  appropriate  action in  response  to 
Commission correspondence.    By its  own admission, ENSERCH  did 
not have the proper  procedures in place to  ensure that it  took 
appropriate action responsive to the staff letter.  While ENSERCH 
did  not  commit  intentional  violations,  its  failure  to  act 
represents  a  serious  breach  of  its  responsibilities  as   a 
Commission licensee.  In this  regard, we believe that  ENSERCH's 
failure to respond in  a timely fashion  to the staff's  February 
20, 1998  letter  is  a  significant  aggravating  factor.   This 
factor, coupled with  the facts  that this  violation involved  a 
substantial transfer  of  control  for a  significant  number  of 
licenses and continued for an  extended period of time, leads  us 
to conclude that a $150,000 forfeiture is warranted.

     17.   ENSERCH's response does not demonstrate that a further 
reduction is  warranted.   The  Puget Sound  case  relied  on  by 
ENSERCH involved fewer stations (125 versus 152), continued for a 
lesser period of time (approximately two months versus just  over 
one year),  and  did  not  involve a  failure  to  respond  to  a 
Commission warning or notification.  Similarly, the facts of this 
case are also more egregious  than the facts in Central  Illinois 
Public Service Company, where we imposed a $30,000 forfeiture for 
an  unauthorized  substantial   transfer  of  control.    Central 
Illinois also involved  significantly fewer  stations (88  versus 
152), occurred for a lesser  period of time (approximately  three 
and a half months versus just over one year), and did not involve 
a failure to  respond to  a Commission  warning or  notification. 
Finally, the  other  mitigating  factors  ENSERCH  cites  do  not 
warrant further reduction.   Accordingly, in light  of the  facts 
presented in ENSERCH's response, including its implementation  of 
a compliance program  to prevent future  violations, we  conclude 
that a $150,000 forfeiture is appropriate.

                      IV.  ORDERING CLAUSES

     18.   Accordingly, IT IS  ORDERED THAT, pursuant to  Section 
503(b)  of  the  Act,  47  U.S.C.         503(b),  and   Section 
1.80(f)(4) of  the Commission's  rules, 47  C.F.R.   1.80(f)(4), 
ENSERCH Corporation (now known as TXU Gas Company) IS LIABLE  FOR 
A MONETARY  FORFEITURE in  the amount  of one  hundred and  fifty 
thousand dollars ($150,000), for willful and repeated  violations 
of Section 310(d) of the Communications Act of 1934, as  amended, 
47 U.S.C.  310(d), and former Section 101.53 of the Commission's 
rules, 47 C.F.R.  101.53.

     19.   Payment of the forfeiture shall be made in the  manner 
provided for in section 1.80 of the Commission's 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, 47  U.S.C.  504(a).  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. 
referenced above.  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.  See 47 C.F.R.   

     20.   IT IS FURTHER ORDERED that copies of this Notice shall 
be sent, by Certified  Mail/Return Receipt Requested, to  counsel 
for ENSERCH, Jonathan L. Wiener, Esq., Goldberg, Godles, Wiener & 
Wright, 1229 19th Street, N.W., Washington, DC 20036.


                         Magalie Roman Salas

1  ENSERCH has changed its name to TXU Gas Company.  See ENSERCH 
Response, p. 1 n.1.  For ease of reference, we will refer to the 
licensee by its former name.

2  As explained in paragraph 14 below, while the Notice of 
Apparent Liability for Forfeiture (see 7, infra) found ENSERCH 
apparently liable for the transfer of 170 stations, we conclude 
that no unauthorized transfer of control took place with respect 
to 18 of those stations because those stations were not licensed 
until after the transfer of control of ENSERCH took place.

3  47 C.F.R.  101.53.  That rule was replaced by Section 1.948 
of the Commission's rules on February 16, 1999.  In the Matter of 
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, 13 FCC Rcd 
21027 (1998).  During the period prior to the time that ENSERCH 
filed its applications, however, Section 101.53 of the 
Commission's rules was the pertinent rule.

4  See authorizations issued to ENSERCH dated September 8, 1998 
(land mobile stations) and April 9, 1999 (microwave stations).
5  ENSERCH Response, p. 20.

6 The figure contained in the text of the statute is $75,000.  
Pursuant to the Debt Collection Improvement Act of 1996, Public 
Law 104-134 (110 Stat. 1321-358), the maximum has been adjusted 
for inflation up to $82,500.  See Section 1.80(b)(5)(iii) of the 
Commission's rules, 47 C.F.R.  1.80(b)(5)(iii).
7  The call signs of those stations are WPKY559, WPKZ419, 
WPKZ641, WPKZ649, WPLP281, WPLQ920, WPLW533, WPLW534, WPLW819, 
WPLW822, WPLW824, WPLW825, WPLW827, WPMB979, WPMB983, WPMK681,