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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
HST Kierland LLC,
)
dba Westin Kierland Resort & Spa, File Number: EB-08-SD-0145
)
Kierland Golf Club, Starwood Vacation NAL/Acct. No: 200932940001
Ownership Arizona Management )
FRN: 0017995077
Licensee of WPPF349 and WQGX784 )
Scottsdale, Arizona )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 11, 2008
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that HST Kierland LLC d/b/a Westin Kierland Resort & Spa, Kierland Golf
Club, and Starwood Vacation Ownership Arizona Management (collectively
"Westin"), the licensee of private land mobile stations WPPF349 and
WQGX784 in Scottsdale, Arizona, apparently willfully and repeatedly
violated Section 1.903(a) of the Commission's Rules ("Rules") by
operating mobile relay stations on unauthorized frequencies. We
conclude, pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Westin is apparently liable for a forfeiture in the
amount of sixteen thousand dollars ($16,000).
II. BACKGROUND
2. On April 25, 2008, the San Diego Office received a complaint from a
General Mobile Radio Services ("GMRS") licensee that a business was
operating on the Family Radio Service ("FRS") frequency 462.6125 MHz and
dispatching shuttle vans for a hotel in the Phoenix area, and that
business was the Westin Kierland Resort & Spa in Scottsdale, Arizona.
Under Section 95.5(a) of the Rules, only individuals and their immediate
family are now eligible to be authorized on frequency 462.6125 MHz.
Businesses may continue to operate a GMRS system if they were first
authorized before July 31, 1987, as outlined under Section 95.5(c) of the
Rules.
3. On June 6, 2008, agents from the San Diego Office were in the
Scottsdale, Arizona, area and determined that the signal on frequency
462.6125 MHz was originating from Westin Kierland Resort & Spa at 6902
East Greenway Parkway, Scottsdale, Arizona. The agents determined that
467.6125 MHz and 462.6125 MHz were a repeater pair, with 462.6125 MHz as
the repeater output frequency and 467.6125 MHz as the repeater input
frequency. Frequency 467.6125 MHz is available only in the FRS pursuant to
Section 95.627 of the Rules.
4. On June 8, 2008, a San Diego agent researched FCC databases and
determined that Westin was not authorized to operate a radio station on
either frequencies of 462.6125 MHz or 467.6125 MHz. The agents returned to
the Westin Kierland Resort & Spa at 6902 East Greenway Parkway,
Scottsdale, Arizona. The agents again determined that frequencies 467.6125
MHz and 462.6125 MHz were again in use by the hotel complex.
5. On June 9, 2008, the FCC agents returned to the Westin Kierland Resort
& Spa and conducted an inspection of the private land mobile radio
facilities found at that location. The staff at the Westin Kierland Resort
& Spa showed the agents four mobile relay repeater stations that were used
at the location, on the following frequency pairs: 461.5125/466.5125 MHz,
462.6125/467.5125 MHz, 463.5125/468.5125 MHz, and 464.8750/469.8750MHz.
Equipment found operating on frequency 467.6125 MHz was not FCC certified
for FRS and had attached an external antenna which voids both FCC
certification of the transmitter and the authority to use this frequency,
as outlined under Sections 95.194(b) and 95.194(c) of the Rules.
6. On July 24, 2008, the San Diego Office issued a Letter of Inquiry
("LOI") to Westin asking if Westin had an FCC authorization for the any of
the eight frequencies in use during the inspection on June 9, 2008:
461.5125 MHz, 462.6125 MHz, 463.5125 MHz, 464.875 MHz, 466.5125 MHz,
467.6125 MHz, 468.5125 MHz, and 469.875 MHz. The LOI also asked for
information concerning any other FCC licenses that Westin might hold at
the Scottsdale facility.
7. On August 5, 2008, Westin responded to the LOI and acknowledged that it
was operating on the frequencies listed by the San Diego Office. Westin
stated that it did not hold a current or expired license for any of the
eight frequencies listed in the LOI. Westin further stated that the "four
(4) repeaters used at the Resort are intended to support segregated radio
communications within and around our property, serving the Security,
Engineering, Housekeeping, Stewarding and Guest Services departments."
Westin also stated that it did not hold any other licenses under its name,
however, "the affiliated, but separate, entities of the Kierland Golf Club
(WPPF349) and Starwood Vacation Ownership (SVO) Arizona Management (d/b/a
Kierland Villas, WQGX784) are indeed licensed." A review of those licenses
revealed that none of the frequency pairs utilized by the four mobile
relay stations in operation at the Westin Kierland Resort & Spa were
authorized by either license.
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) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly.
9. Section 1.903(a) of the Rules requires that stations in the 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. On June 6, 8, and 9, 2008, San Diego agents
determined that Westin was operating mobile units on the frequency
467.6125 MHz and a mobile relay station on the frequency 462.6125 MHz
without a license authorizing use of those frequencies. Westin
acknowledged to the San Diego Office that it was operating on those
frequencies, as well as three other frequency pairs on four land mobile
stations, even though those frequencies were not authorized by the
licenses used by Westin and its affiliates. The violation continued for
more than one day; therefore, it was repeated. Westin was aware that it
was operating on the unauthorized frequencies, therefore, the violation
was willful. Based on the evidence before us, we find that Westin
apparently willfully and repeatedly violated Section 1.903(a) of the Rules
by operating four mobile relay stations utilizing four frequency pairs not
authorized by its or its affiliates' licenses.
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. As described above, Westin operated four mobile relay stations,
utilizing four frequency pairs not authorized by any license held by
Westin or its affiliates. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors, we conclude that a
$16,000 forfeiture is warranted.
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 and 1.80
of the Commission's Rules, HST Kierland LLC d/b/a Westin Kierland Resort &
Spa, Kierland Golf Club, and Starwood Vacation Ownership Arizona
Management is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of sixteen thousand dollars ($16,000) for violation of
Section 1.903(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of this
Notice of Apparent Liability for Forfeiture, HST Kierland LLC d/b/a Westin
Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation Ownership
Arizona Management 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. HST Kierland LLC d/b/a
Westin Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation
Ownership Arizona Management shall also send electronic notification on
the date said payment is made to WR-Response@fcc.gov.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St, Suite 370, San Diego, California 92111and must include the
NAL/Acct. No. referenced in the caption. An electronic copy shall be sent
to WR-Response@fcc.gov.
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 HST Kierland LLC d/b/a Westin Kierland
Resort & Spa, Kierland Golf Club, and Starwood Vacation Ownership Arizona
Management at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 95.5(a).
47 C.F.R. S: 95.5(c).
47 C.F.R. S: 95.627.
47 C.F.R. S: 95.194(b) & (c).
On August 1, 2008, subsequent to the investigation by the San Diego
Office, and the receipt of the LOI, Westin was granted a special temporary
authority ("STA), call sign WQJD615, from the Commission, to operate on
461.5125 MHz, 463.5125 MHz, 464.875 MHz, 466.5125 MHz, 468.5125 MHz, and
469.875 MHz, as well as other frequencies, on a secondary non-interference
basis. On November 10, 2008, the Commission granted Westin a license, call
sign WQJN623, for operation on those frequencies.
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).
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 C.F.R. S:S: 0.111, 0.311, 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