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


In the Matter of                        )
                                   )     
Colorado Small Business Development Assoc., Inc.  )    EB-00-TS-

011
Trunked Business Station WPHX776             )    NAL/Acct.  No.:  

915DV0008 
Denver, Colorado                        )
                                   )
Westall Communications d/b/a M.T.W.               )    EB-00-TS-

012  
Trunked Business Station WPHI656             )    NAL/Acct.  No.:  

915DV0009
Denver, Colorado                        )    
                                        
                                     
                  MEMORANDUM OPINION AND ORDER


   Adopted:  November 22, 2000          Released:   November  28, 

2000   

By the Commission:

          1.   In  this  Order,  we  deny  the  April  24,  2000, 
application  for  review   filed  by   Colorado  Small   Business 
Development   Association,   Inc.    (``CSBDA'')   and    Westall 
Communications, d/b/a/  M.T.W.  (``Westall'') of  the  Forfeiture 
Order1 in this  proceeding.  Pursuant  to Section  503(b) of  the 
Communications Act of 1934, as  amended (``the Act''), 47  U.S.C. 
503(b), and  Section  1.80  of the  Commission's  Rules  (``the 
Rules''), 47 C.F.R.  1.80, the Enforcement  Bureau found  CSBDA 
liable for a  monetary forfeiture  in the amount  of $10,000  and 
Westall liable for a monetary forfeiture in the amount of $12,000 
for unauthorized  construction and  operation of  business  radio 
transmitters in  the greater  Denver, Colorado  area, in  willful 
violation of Section 301 of  the Act,2 and former Section  90.113 
of the Commission's Rules.3  For the reasons discussed below,  we 
deny the application and affirm the forfeitures.  

                           BACKGROUND

     2.   On September 22, 1999, the FCC's Denver, Colorado Field 

Office  issued  Notices  of  Apparent  Liability  for  Forfeiture 

(``NALs'') to CSDBA and  Westall in the  amounts of ten  thousand 

dollars  ($10,000)   and  twelve   thousand  dollars   ($12,000), 

respectively,4 for  unauthorized  construction and  operation  of 

radio transmitters on frequencies 937.1500 MHz, 937.6500 MHz  and 

937.7375 MHz in the greater Denver, Colorado area.  The NALs were 

prepared after an interview with a principal of both Westall  and 

CSBDA, and inspections of  the sites by  FCC agents on  September 

23, 1998 and September  24, 1998. Though  Westall and CSBDA  were 

licensed  to  operate  on   these  frequencies,  the   authorized 

locations for  the transmitters  were,  respectively, 20  and  45 

miles away from their actual locations.  

     3.   CSDBA and Westall filed a consolidated response to both 
NALs on October  22, 1999, which  argued that the  NALs were  not 
issued within one year  of the occurrence  of the violations,  as 
required by Section 503(b)(6)(B) of the Act, and should therefore 
be rescinded.  Despite  the release  date of  September 22,  1999 
clearly marked on both  NALs, Westall and  CSBDA argued that  the 
NALs failure  to appear  on the  Commission's Daily  Digests  for 
either September 22 or  23, 1999 indicated  that neither NAL  had 
actually been released.  CSBDA and Westall further contended that 
the NALs were sent to them in envelopes postmarked more than  one 
year after the violations were found, and that the NALs ``can not 
be deemed `issued' on September 22, 1993 [sic] simply because the 
Bureau staff  places that  date  on a  document that  it  neither 
releases nor mails to the licensee until a week later.''  

     4.   The Forfeiture Order  rejected these arguments,  noting 
that the Denver Field  Office originally sent  the NALs to  CSBDA 
and Westall  on September  22, 1999,  by Certified  Mail,  Return 
Receipt Requested,  but  CSBDA  and  Westall  refused  to  accept 
delivery of  them. When  the certified  letters came  back  after 
CSBDA and Westall refused delivery, the Denver Field Office  made 
a second attempt  to serve the  NALs, this time  by regular  U.S. 
mail.  The  second attempt  at service  was successful,  but  the 
envelopes transmitting the NALs  by regular mail were  postmarked 
after the expiration  of the statute  of limitations. The  Bureau 
concluded, ``[h]aving affirmatively refused  service of the  NALs 
that were issued and  mailed to them prior  to the expiration  of 
the statute of  limitations, CSBDA and  Westall cannot now  claim 
that the  NALs  fail because  they  were not  issued  within  the 
timeframe established by 47 U.S.C. 503(b)(6)(B).''5 

     5.   In  the  application  for  review,  CSBDA  and  Westall 

reiterate the arguments  previously rejected  by the  Enforcement 

Bureau in  the Forfeiture  Order, and  allege that  ``[t]here  is 

absolutely no evidence whatsoever  for [the Bureau's]  contention 

that CSBDA and  Westall refused  to accept  delivery of  official 

Commission correspondence, and  the licensees categorically  deny 

that they  refused such  delivery.'' The  application for  review 

contends that the  address to  which the  NALs were  sent is  the 

business address for both licensees  as well as the residence  of 

Mr. Westall, the  principal of  CSBDA and the  owner of  Westall.  

The application for review further asserts:  ``As such, the  only 

persons who could have refused acceptance of the alleged  attempt 

to served [sic] the notices on September 22, 1999 would have been 

wither [sic] Westall or his  spouse.  Each expressly denies  ever 

having refused an attempted deliver [sic] from the Commission.''

                           DISCUSSION

     6.   Despite the  express denials  of Mr.  and Mrs.  Westall 
referenced in  the application  for  review, the  certified  mail 
envelopes returned to the Commission's Denver office by the  U.S. 
Postal Service are clearly marked ``refused.''6 Consequently,  we 
find that Westall and CSBDA,  who are both Commission  licensees, 
did refuse to take delivery of  the NALs, and we concur with  the 
Bureau that Westall and CSBDA cannot now claim that the NALs were 
not issued in a  timely fashion.  See 47  C.F.R.  1.5(b)  (``The 
licensee is responsible for making any arrangements which may  be 
necessary  in  his  particular   circumstances  to  assure   that 
Commission documents  ... delivered  to  ... [his]  address  will 
promptly reach him or some person authorized by him to act in his 
behalf.''); see also U.S. v. Bolton, 781 F.2d 528, 532 (6th  Cir. 
1985), cert. denied sub  nom. Bolton v.  United States, 476  U.S. 
1158 (1986) (``It is reasonable to assume that if persons  refuse 
to accept delivery or  collect their mail, the  mail has in  fact 
reached them.''); Hoffman v. National Equipment Rental, Ltd., 643 
F.2d 987, 990 (4th  Cir. 1981) (A notice  sent by certified  mail 
was deemed  to be  served although  the postal  service  returned 
certified mail notice as ``refused.'').

     7.   The application for review also contends that, even had 
the original certified mailing of the NALs not been refused,  the 
documents could not have been physically delivered to Westall and 
CSBDA prior to the expiration of the statute of limitations,  and 
would thus still have been invalid. However, the statute does not 
require  that  the  NAL  be  received  within  one  year  of  the 
violation, but that the NAL must be issued within one year of the 
violation. 47 U.S.C. 503(b)(6)(B).  Where, as here, the NAL  is 
issued by a Commission Field Office,  it is not published in  the 
Federal Register;  it is  not released  by making  the full  text 
available to the press and the public at Commission headquarters, 
and it does not  appear on a Commission  Public Notice or in  the 
Daily Digest.  In such a case,  the date of issuance is the  date 
that appears  on the  NAL.  See  47 C.F.R.  1.4(b)(5) (in  such 
circumstances, date of  "public notice" for  computation of  time 
purposes is the date that appears on the item).   Thus, the NALs, 
which were  issued  on  September 22,  1999,  complied  with  the 
statute of limitations  even if received  by the licensees  after 
that date.

                        ORDERING CLAUSES

     8.   ACCORDINGLY, IT IS  ORDERED that,  pursuant to  Section 

1.115(c) of the Rules, 47 C.F.R. 1.115(c), the application  for 

review of  the  Forfeiture  Order  for  NAL  Nos.  915DV0008  and 

915DV0009 IS DENIED.

     9.   Payment of the forfeitures shall be made in the  manner 
provided for in Section 1.80 of the Commission's Rules7 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.8  Payment may be  made 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. Numbers 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. 
20554.9

     10.  IT IS FURTHER  ORDERED that a  copy of this  Memorandum 
Opinion and  Order  shall be  sent  by Certified  Mail  Return  - 
Receipt Requested to Robert J. Keller, Esquire, at Law Offices of 
Robert J.  Keller,  P.C.,  P.O. Box  33428  -  Farragut  Station, 
Washington, D.C. 20033-0428.

                              FEDERAL COMMUNICATIONS COMMISSION

  

                              Magalie Roman Salas
                              Secretary
_________________________

     1 15 FCC Rcd 5811 (Enf. Bur. 2000).

     2 47 U.S.C.  301

     3  Effective  February  12,  1999,  Section  90.113  of  the 
Commission's Rules was incorporated into Section 1.903(a) of  the 
Rules, 47 C.F.R.  1.903(a).   Since Section 90.113 of the  Rules 
was applicable  at  the  time the  violations  were  noted,  that 
Section was referenced in the NALs.

     4 NAL Nos. 915DV0008 and 915DV0009 (FCC Denver Field Office, 
both released September 22, 1999).

5     15 FCC Rcd at 5812-5813.

     6 Copies of the returned certified mail envelopes are a part 
of the case file in this matter and are available for review at 
the Commission.
     7 47 C.F.R.  1.80.

     8 47 U.S.C.  504(a).

     9 See 47 C.F.R.  1.1914.