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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                   )                                
                                                                    
                                   )                                
     In the Matter of                                               
                                   )     File Number: EB-07-DV-340  
     Colomex, Inc.                                                  
                                   )   NAL/Acct. No.: 200832800004  
     Licensee of Station WQBI487                                    
                                   )               FRN: 0013803523  
     Canon City, Colorado                                           
                                   )                                
                                                                    
                                   )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                     Released: March 31, 2008

   By the District Director, Denver Office, Western Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Colomex, Inc. ("Colomex"), licensee of station WQBI487, in Canon
       City, Colorado, apparently willfully and repeatedly violated Section
       1.903(a)  of the Commission's Rules ("Rules") by operating this
       station on a channel other than one of the authorized channels listed
       on the license. We conclude, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended ("Act"), that Colomex is
       apparently liable for a forfeiture in the amount of four thousand 
       dollars ($4,000).

   II. BACKGROUND

    2. Colomex, a franchisee of the Taco Bell Corporation, holds license
       WQBI487, qualifying under the industrial/business pool, conventional
       radio service ("IG"), to operate in the 460 MHz band for a term
       expiring on October 14, 2014. Under call sign WQBI487, Colomex is
       authorized to operate on any one of the fifteen frequencies listed on
       WQBI487, beginning at the first listed channel, 464.0125 MHz and
       ending at the fifteenth channel, 464.3625 MHz. WQBI487 authorizes
       Colomex to operate its mobile radios within a 121 km (75 miles) radius
       of any one of five fixed locations expressed in coordinate form on the
       license. The Taco Bell located at 1112 Royal Gorge Boulevard, in Canon
       City, Colorado, corresponds to "Loc[ation] 4" on the license, with its
       coordinates of 38-o 26' 36" north latitude and 105-o 13' 55.3" west
       longitude.

    3. On November 16, 2007, the Enforcement Bureau's Denver Office received
       a complaint of interference from the licensee of radio station
       KNBS557, licensed to operate on 154.515 MHz in Canon City, Colorado.
       The complainant was hearing conversations related to the Taco Bell
       customer drive through ordering operations, and contended that
       transmissions from the Taco Bell radio system had been occurring for
       approximately ten years. A search of the FCC's ULS database for
       licensees within 10 km of station KNBS557 and operating on 154.515 MHz
       yielded only the license for radio station KNBS557.

    4. On January 10, 2008, utilizing direction finding techniques and
       listening to the content of the subject's transmissions, agents from
       the Denver Office positively identified the source of the signal on
       154.515 MHz as being the Taco Bell restaurant located at 1112 Royal
       Gorge Boulevard, in Canon City, Colorado. The Denver Office agents
       again identified the source of the 154.515 MHz signals by observing
       the transmissions of the mobile radio in the presence of the Taco Bell
       operator. During an interview with the Taco Bell duty manager, a copy
       of the FCC license, WQBI487, was produced for the Denver Office
       agents. WQBI487 authorized only UHF channels in the 460 MHz band. No
       VHF frequencies, including 154.515 MHz, were authorized in the license
       for WQBI487. A Notice of Unlicensed Radio Operation (NOUO) was issued
       to the Taco Bell in Canon City and receipt was acknowledged by the
       duty manager. The NOUO noted that a valid FCC radio license for
       transmission on 154.515 MHz was not in evidence at the time of the
       inspection.

    5. On January 11, 2008, the Colomex Director of Operations ("Director")
       called the Denver Office and spoke with one of the agent who had
       investigated Colomex's operations. The Director indicated that the
       radio service company was working on the radio equipment at that time.
       The Director asked the Denver agent to explain WQBI487's technical
       parameters, in particular the correct frequency for the Taco Bell
       located in Canon City. The Denver agent explained that WQBI487 allowed
       for the use of fifteen 460 MHz (UHF) channels at the Canon City Taco
       Bell location.

    6. Colomex's Director of Operations called again on January 14, 2008. In
       his voice mail message, the Director stated that the radio service
       company replaced the equipment and that the replacement transmitter
       was operating on 151.655 MHz. The Director stated he was told by the
       radio service company that 151.655 MHz was an itinerant channel that
       was acceptable for use.

    7. On January 15, 2008, the Denver agent called the Director and
       explained that the 151.655 MHz frequency was not authorized on
       WQBI487. The Director stated that the Canon City Taco Bell was
       operating on 151.655 MHz because no UHF (460 MHz) equipment was
       available. The Denver agent explained to the Director that the
       licensing process must be initiated and temporary authority obtained
       before Colomex can legally operate on 151.655 MHz.

   III. DISCUSSION

    8. Section 503(b) of the Act provides that any person who willfully or
       repeatedly fails to comply substantially with the terms and conditions
       of any license, or willfully or repeatedly fails to comply with any of
       the provisions of the Act or of any rule, regulation or order issued
       by the Commission thereunder, shall be liable for a forfeiture
       penalty. The term "willful" as used in Section 503(b) has been
       interpreted to mean simply that the acts or omissions are committed
       knowingly. The term "repeated" means the commission or omission of
       such act more than once or for more than one day.

    9. Section 1.903(a) of the Rules requires that stations in the Wireless
       Radio Services must be operated only in accordance with the rules
       applicable to their particular service and with a valid authorization
       granted by the Commission. On January 10, 2008, the Denver agents
       found Colomex operating on 154.515 MHz, a frequency not authorized by
       its license WQBI487. Colomex received a NOUO warning it against
       continuing to operate on channels for which it did not hold a valid
       station authorization. On January 15, 2008, Colomex's Director of
       Operations admitted to switching operations to 151.655 MHz at the
       Canon City Taco Bell. Colomex was aware the operations on 151.655 MHz
       were not authorized by its license and admitted such operation to the
       Denver agent. Consequently, its violation was willful. The violation
       occurred for more than one day, therefore, it was repeated. Based on
       the evidence before us, we find that Colomex  apparently willfully and
       repeatedly violated Section 1.903(a) of the Rules by operating station
       WQBI487 on frequencies other than those authorized by its license.

   10. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
       of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
       ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
       base forfeiture amount for using an unauthorized frequency is $4,000.
       In assessing the monetary forfeiture amount, we must also take into
       account the statutory factors set forth in Section 503(b)(2)(E) of the
       Act, which include the nature, circumstances, extent, and gravity of
       the violations, and with respect to the violator, the degree of
       culpability, and history of prior offenses, ability to pay, and other
       such matters as justice may require. Applying the Forfeiture Policy
       Statement, Section 1.80, and the statutory factors to the instant
       case, we conclude that Colomex is apparently liable for a $4,000
       forfeiture.

   IV. ORDERING CLAUSES

   11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314 and 1.80 of the Commission's Rules, Colomex, Inc., is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       four thousand dollars ($4,000) for violations of Sections 1.903(a) of
       the Rules.

   12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules within thirty days of the release date of this
       Notice of Apparent Liability for Forfeiture, Colomex, Inc., SHALL PAY
       the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   13. Payment of the forfeiture must be made by check or similar instrument,
       payable to the order of the Federal Communications Commission. The
       payment must include the NAL/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
        When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to:  Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C. 20554.  Please contact the Financial Operations Group Help Desk
       at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures.

   14. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Western Region, Denver Office, 215
       South Wadsworth Boulevard, Suite 303, Lakewood, Colorado, 80226,  and
       must include the NAL/Acct. No. referenced in the caption.

   15. 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.

   16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail, Return Receipt
       Requested, and regular mail, to Colomex, Inc.

   FEDERAL COMMUNICATIONS COMMISSION

   Nikki P. Shears

   District Director

   District Office

   Western Region

   Enforcement Bureau

   47 C.F.R. S: 1.903(a).

   47 U.S.C. S: 503(b).

   KNBS557 is an industrial/business pool, conventional radio service ("IG")
   licensed to operate on 154.515 MHz and for a term expiring on June 5,
   2012.

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
   authorized by this Act...." See Southern California Broadcasting Co., 6
   FCC Rcd 4387 (1991).

   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
   to violations for which forfeitures are assessed under Section 503(b) of
   the Act, provides that "[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."

   47 C.F.R. S: 1.903(a).

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
   S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 1.903(a).

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

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   Federal Communications Commission