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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
TeleBEEPER of New Mexico, Inc. ) File Number EB-01-DL-818
Licensee of Radio Station ) NAL/Acct. No. 200232500006
WPQN222 ) FRN: 0001-6111-10
Albuquerque, New Mexico )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 9, 2002
By the Enforcement Bureau, Dallas Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that TeleBEEPER of New Mexico, Inc. (TeleBEEPER), licensee
of Wireless Radio Services Station WPQN222, willfully violated
Section 1.903(a) of the Commission's Rules (``Rules'') by failing
to operate in accordance with its station authorization.1 We
conclude that TeleBEEPER of New Mexico, Inc. is apparently liable
for a forfeiture in the amount of three thousand dollars
($3,000).
II. BACKGROUND
2. On December 6, 2001, in response to a complaint of
interference, an agent from the FCC Enforcement Bureau's Dallas
Field Office (``Dallas Office'') located the source of
interference to be a radio paging service transmitting on the
frequency 929.2375 MHz from Franklin Mountain, El Paso, Texas.
A search of the FCC license database showed an authorization
issued to TeleBEEPER under callsign WPQN222 authorizing operation
in the El Paso-Albuquerque market area. However, TeleBEEPER's
authorization contained a special condition requiring TeleBEEPER
to file an application with the Commission to modify its license
in order to add any transmitter site located within 120 km (75
miles) of the U.S.-Mexican border within 30 days of commencing
such operation. FCC records showed no such application for
TeleBEEPER's operation on Franklin Mountain. Still on December
6, 2001, the agent interviewed by telephone TeleBEEPER's owner,
Mr. Dallas Vanderhoof, who stated that TeleBEEPER owned the radio
paging service operating on 929.2375 MHz on Franklin Mountain.
3. On April 29, 2002, the Dallas Office issued to
TeleBEEPER an Official Letter of Inquiry (``LOI'') requesting
TeleBEEPER to provide the date they commenced operation on
Franklin Mountain in El Paso, Texas, and copies of any
documentation submitted to modify TeleBEEPER's license to operate
at that location. The Dallas Office received TeleBEEPER's reply
to the LOI on May 31, 2002. TeleBEEPER stated they had commenced
operation on Franklin Mountain in or about September, 2000, and
had failed to file an application for that operation.
III. DISCUSSION
4. Section 1.903(a) of the Rules sets forth that 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. A special condition
attached to TeleBEEPER's license WPQN222 requires TeleBEEPER to
notify the Commission of each transmitter site located within 120
km (75 miles) of the U.S. - Mexican border. Specifically, for
each site within the border area, the licensee must file an
application to modify its license in order to add the new
transmitter to their authorization within 30 days of commencing
operation. On December 6, 2001, TeleBEEPER operated a paging
service from Franklin Mountain in El Paso, Texas on 929.2375 MHz
approximately 2.5 miles from the border with Mexico. TeleBEEPER
admits this operation commenced in or about September 2000. The
required application for the subject site had not been submitted
as of December 6, 2001.
5. Based on the evidence before us, we find that on
December 6, 2001, TeleBEEPER of New Mexico, Inc., willfully2
violated Section 1.903(a) of the Rules by failing to notify the
Commission of each transmitter site located within 120 km (75
miles) of the U.S. - Mexican border within 30 days of commencing
operation.
6. Pursuant to Section 1.80(b)(4) of the Rules, the base
forfeiture amount for failure to file required forms or
information is $3,000.3 Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), requires us to
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.''4
Considering the entire record and applying the statutory factors
listed above, this case warrants a $3,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
Rules,6 TeleBEEPER of New Mexico, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of three
thousand dollars ($3,000) for willful violation of Section
1.903(a) of the Commission's Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this Notice
of Apparent Liability, TeleBEEPER of New Mexico, Inc. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FRN and NAL/Acct. No. referenced in the letterhead above.
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.7
13. IT IS FURTHER ORDERED THAT a copy of this Notice of
Apparent Liability shall be sent by regular mail and Certified
Mail Return Receipt Requested to TeleBEEPER of New Mexico, Inc.,
4604 McLeod NE, Albuquerque, New Mexico 87109.
FEDERAL COMMUNICATIONS COMMISSION
Jerry M. Montgomery
Acting District Director, Dallas
Office
Enforcement Bureau
_________________________
1 47 C.F.R. § 1.903(a).
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 47 C.F.R. § 1.80(b)(4).
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 See 47 C.F.R. § 1.1914.