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

In the Matter of                )       
420 Energy Investments, Inc.    )       File No. EB-00-CF-386 
WPFQ228                         )
Burnsville, WV                  )
and                             )       NAL/Acct. No. 
WPFP282                         )
Sardis, WV                      )


                                             Released: January 3, 

By the District Director, Columbia Office, Enforcement Bureau:

                        I.  Introduction

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(NAL), we find that 420 Energy Investments, Inc. (``420 Energy'') 
has apparently  violated  Section 1.903(a)  of  the  Commission's 
Rules and  Regulations  (the  ``Rules")1 by  failing  to  operate 
stations WPFQ228, Burnsville, West Virginia and WPFP282,  Sardis, 
West Virginia  in  accordance  with  the  terms  of  the  station 
licenses.  We conclude that 420 Energy is apparently liable for a 
forfeiture in the amount of $6,000  for each of the two  stations 
in violation, resulting in a total proposed forfeiture amount  of 
twelve thousand dollars ($12,000).

                         II.  Background

     2.   Station WPFQ228, licensed to 420 Energy and located  at 
Burnsville, WV, was inspected on July 11, 2000 by agents from the 
Commission's  Columbia,  Maryland  Field  Office.   During   that 
inspection,  the   agents  discovered   that  the   station   was 
transmitting on 856.3375 MHz, a frequency not authorized for  use 
at  that  station.   They  also  noted  that  several  authorized 
frequencies were not installed. 

     3.   As a result of violations noted at WPFQ228, the  agents 

requested to inspect station  WPFP282 at Sardis, WV.   Inspection 

of station WPFP282 revealed that the station was transmitting  on 

855.9625 MHz, a frequency not authorized for use at that station.  

Equipment was installed to permit  operation on 855.7125 MHz  and 

854.9625 MHz,  frequencies  not  authorized for  use  at  station 

WPFP282.  They  also noted  that several  authorized  frequencies 

were not installed.
     4.   The Columbia office issued a Notice of Violation to 420 

Energy for station WPFQ228 and  station WPFP282 on July 25,  2000 

detailing these violations.  In a reply dated September 11, 2000, 

420 Energy stated that it began ``swapping`` frequencies  between 

the two  stations  in late  1999  and submitted  applications  on 

February 2,  2000  to  cover  the  new  frequency  usage.   Those 

applications were returned  on May 17,  2000 and the  application 

for WPFP282 was resubmitted on  July 17, 2000.  The reply  stated 

that on July 20,  2000 the Commission  cancelled the license  for 

station WPFQ228.  420 Energy  acknowledged that they operated  on 

frequencies not  authorized  for  the facilities  and  that  they 

should have  obtained  Special  Temporary  Authority  ``prior  to 

initiating  any   operations   not  in   conformance   with   the 

specifications reflected on its outstanding authorization.''   On 

October 6, 2000 a Notice  of Violation (Continuation) was  issued 

for each station. Those Continuations asked 420 Energy to confirm 

that station WPFQ228 and station WPFP282 had ceased operation  on 

the unauthorized  frequencies.  And  if  such operation  had  not 

ceased, to confirm by what authority the stations were continuing 

to operate.  420  Energy stated in  their response dated  October 

18, 2000  that the  operation had  not ceased,  pending grant  of 

Special temporary Authority requested on October 12, 2000.

                        III.  Discussion

     5.   Section 1.903(a) requires that stations in the Wireless 

Radio Services  must be  operated in  accordance with  applicable 

rules and with a valid  authorization granted by the  Commission.  

The licensee acknowledged in his  reply dated September 11,  2000 

that he  should  have  obtained  Commission  authority  prior  to 

beginning operation in late 1999 on frequencies not authorized at 

the two  stations.   In a  reply  dated, October  18,  2000,  the 

licensee  acknowledged  that   the  unauthorized  operation   had 

continued pending receipt of Commission authorization.  Based  on 

the replies, the  Licensee did  not apply  for Special  Temporary 

Authority to operate the stations, as constructed, until  October 

12, 2000.  The requested Special Temporary Authority was  granted 

on October 31, 2000.  It is  clear that 420 Energy was aware  for 

some time that it was operating in violation of Section  1.903(a) 

and consciously chose to continue to operate in violation.

     6.   Based on  the  evidence before  us,  we find  that  420 

Energy Investments,  Inc.  operated  in  willful2  and  repeated3 

violation of  Section 1.903(a)  of the  Rules.  The  Commission's 

Forfeiture Policy Statement and Amendment of Section 1.80 of  the 

Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 

17113 (1997),  recon.  denied,  15 FCC  Rcd  303(1999)  (``Policy 

Statement''), sets the  base amount  for use  of an  unauthorized 

frequency at four  thousand dollars ($4,000)  per violation.   In 

assessing the monetary forfeiture amount, we must also take  into 

account the statutory factors  set forth in Section  503(b)(2)(D) 

of the Communications  Act of 1934  (``Act'')4, as amended,  that 

include 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.  Applying the  Policy 

Statement and statutory factors to  the instant case, we  believe 

that a monetary forfeiture in the amount of six thousand  dollars 

($6,000) per station in violaton  for a total of twelve  thousand 

dollars ($12,000) is warranted.  This amount reflects an increase 

above the base amount due to the conscious, continuing  violation 

at both the Burnsville and Sardis stations. 

                      IV.  ORDERING CLAUSES

     7.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 

503(b) of the  Act5 and  Sections 0.111,  0.311 and  1.80 of  the 

Rules6, 420 Energy  Investments, Inc. is  hereby NOTIFIED of  its 

APPARENT LIABILITY  FOR  A FORFEITURE  in  the amount  of  twelve 

thousand dollars ($12,000) for willfully and repeatedly violating 

Section 1.903(a) of the Rules.

     8.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 

the Rules, within thirty (30) days of the date of release of this 

NOTICE OF APPARENT LIABILITY, 420 Energy Investments, 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 should note the 

NAL/Acct. No. 200132340001. 

     10.  The  response,  if  any,  must  be  mailed  to  Federal 

Communications  Commission,  Enforcement  Bureau,  Technical  and 

Public Safety Division, 445  12th Street, S.W., Washington,  D.C. 

20554 and MUST INCLUDE THE NAL/Acct. No. 200132340001. 

     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 


     12.  Requests for payment of the full amount of this  Notice 

of Apparent Liability  under an installment  plan should be  sent 

to: Chief, Credit  and Debt Management  Center, 445 12th  Street, 

S.W., Washington, D.C. 20554.7

     13.  IT IS FURTHER ORDERED THAT  this notice shall be  sent, 

by certified  mail,  return  receipt  requested,  to  420  Energy 

Investments, Inc., c/o  Wayne V. Black,  Keller and Heckman  LLP, 

1001 G Street, N.W., Suite 500 West, Washington, DC 20001.

                                FEDERAL            COMMUNICATIONS 


                                Charles C. Magin
                                District    Director,    Columbia 


1 47 C.F.R.  1.903(a).
2Section 312(f)(1), which also applies to Section 503(b), 
provides: ``the 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 or any rule or 
regulation of the Commission, authorized by this Act or by a 
treaty ratified by the United States.''  See Southern California 
Broadcasting Co., 6 FCC Rcd 4387(1991).

3 Section 312(f)(2), which also applies to Section 503(b), 
provides: [t]he term ``repeated'', when used with reference to 
the commission or omission of any act,  means the commission or 
omission of such act more than once or, if such commission or 
omission is continuous, for more than one day.

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, and 1.80.

7 See 47 C.F.R.  1.1914.