Click here for Microsoft Word Version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Falcon Radio, Inc. ) File No. EB-00-TS-002
Trunked Business Station )
Denver, CO ) NAL/Acct. No. 915DV0005
)
and )
)
Falcon Radio, Inc. ) File No. EB-00-TS-009
Trunked Business Station )
Denver, CO ) NAL/Acct. No. 915DV0006
MEMORANDUM OPINION AND ORDER
AND FORFEITURE ORDER
Adopted: July 30, 2001 Released: August 1, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order and Forfeiture
Order (``Order''), we consolidate the above-captioned
proceedings involving Falcon Radio, Inc. (``Falcon'') because
they raise overlapping issues. For the reasons that follow,
we issue a monetary forfeiture in the amount of five thousand
dollars ($5,000) to Falcon for its unlicensed operation of a
900 MHz business radio system at Thorodin Mountain in
Wondervu, Colorado, in willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended
(``the Act'').1 In addition, we rescind a monetary forfeiture
in the amount of twenty thousand dollars ($20,000) issued to
Falcon for its unlicensed operation of a 900 MHz business
radio system at Squaw Mountain in Idaho Springs, Colorado, in
willful and repeated violation of Section 301 of the Act.
II. BACKGROUND
2. In 1998, after receiving complaints and information
regarding non-compliant operation and use of the 800 MHz and
900 MHz frequency bands in the Denver area, the FCC's Denver,
Colorado Field Office (``Denver Office'') initiated an
investigation. As part of this investigation, on September
23, 1998, agents from the Denver Office inspected a trunked
radio system located at Squaw Mountain in Idaho Springs,
Colorado. The system was composed of five transmitters, all
of which were in operation. Measurements taken by the agents
indicated that the radio equipment was transmitting on
frequencies 939.3875 MHz, 939.4000 MHz, 939.4125 MHz, 939.4250
MHz, and 939.4375 MHz. At the time of the inspection, the
system was being managed and operated by Falcon, a subsidiary
of High Voltage, Inc. (``High Voltage''). Jack Spillman,
Falcon's service manager, told the agents that the five
channels at the Squaw Mountain site were part of a ten channel
station licensed to High Voltage at Squaw Mountain under the
call sign WPIZ573. Mr. Spillman stated that High Voltage had
received Special Temporary Authority (``STA'') from the
Commission to construct and operate the other five channels at
Thorodin Mountain in Wondervu, Colorado.
3. On September 28, 1998, agents from the Denver Office
inspected the Thorodin Mountain site. The agents observed a
trunked radio system composed of five transmitters, all of
which were in operation. Measurements taken by the agents
indicated that the radio equipment was transmitting on
frequencies 939.4500 MHz, 939.4625 MHz, 939.4750 MHz, 939.4875
MHz, and 939.5000 MHz. Mr. Spillman was also present at this
inspection. He repeated that High Voltage had received STA
from the Commission to construct and operate the five channels
at the Thorodin Mountain site rather than at the authorized
Squaw Mountain site and provided a copy of a request for
extension of the STA as authorization for the operation at the
Thorodin Mountain site.
4. In reviewing Commission records, the Denver Office
discovered that the Wireless Telecommunications Bureau
(``Wireless Bureau'') had deleted the license for Station
WPIZ573 from its database on March 24, 1998, based on a
failure to construct Station WPIZ573 and to respond to an
``800H letter,'' the third and final of three form letters
routinely sent out by the Wireless Bureau to request the
construction status of a particular station. Review of
Commission records showed no other authorization for operation
at the Squaw Mountain site. Moreover, while review of
Commission records revealed that High Voltage had obtained STA
to construct and operate five channels at the Thorodin
Mountain site for a 180-day period from December 4, 1996, to
June 4, 1997, there was no record of any extension of this STA
or any other authorization for operation at the Thorodin
Mountain site.
5. Based on its finding that the license for Station
WPIZ573 had been cancelled, on September 15, 1999, the Denver
Office issued a Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of twenty thousand dollars ($20,000)
to Falcon for unlicensed operation of a 900 MHz business radio
system at Squaw Mountain in Idaho Springs, Colorado (``Squaw
Mountain NAL'').2 On that same date, the Denver Office also
issued an NAL in the amount of twenty thousand dollars
($20,000) to Falcon for unlicensed operation of a 900 MHz
business radio system at Thorodin Mountain in Wondervu,
Colorado (``Thorodin Mountain NAL'').3 Falcon filed a
response to the Thorodin Mountain NAL on October 14, 1999,4
but did not file a timely response to the Squaw Mountain NAL.
The Enforcement Bureau issued a Forfeiture Order affirming the
Squaw Mountain NAL on December 21, 1999.5 On December 20,
1999, Falcon filed a letter requesting that its October 14,
1999 response to the Thorodin Mountain NAL also be treated as
a response to the Squaw Mountain NAL. Falcon stated that it
had not received a copy of the Squaw Mountain NAL at the time
it was issued and that it had only recently become aware of
the Squaw Mountain NAL. Falcon's December 20, 1999 pleading
was an untimely response to the Squaw Mountain NAL6 and was
submitted too late to receive consideration prior to issuance
of the Forfeiture Order. Nevertheless, we will treat this
pleading as a petition for reconsideration of the Forfeiture
Order pursuant to Section 1.106 of the Commission's Rules.7
6. Falcon argues that the license for Station WPIZ573 was
incorrectly cancelled because Station WPIZ573 was constructed
and placed into operation in a timely manner. Falcon states
that five of the ten channels licensed to Station WPIZ573 were
constructed and placed into operation at the authorized Squaw
Mountain site within the one-year construction period. Falcon
further states that on December 4, 1996, the Wireless Bureau
granted High Voltage STA to construct and operate the
remaining five channels at the Thorodin Mountain site for a
180-day period ending June 4, 1997. Although Falcon admits
that the request for extension of the STA was never filed with
the Commission, it maintains that the failure to file the
extension request was the result of an administrative error.
Falcon avers that it continued to operate the five channels at
the Thorodin Mountain site under the mistaken belief that the
STA had been extended pending the filing of an application to
modify the license for Station WPIZ573 to permanently relocate
the five channels to the Thorodin Mountain site. High Voltage
filed a modification application for Station WPIZ573 on June
1, 1998. This application was returned to High Voltage by the
frequency coordinator on November 11, 1998, because the call
sign WPIZ573 had been deleted from the Commission database on
March 24, 1998.
7. Falcon also asserts that High Voltage never received
the Wireless Bureau's 800H letter or any other request from
the Commission for information about the status of the
construction of Station WPIZ573. However, Falcon maintains
that the Wireless Bureau was notified in the STA request
granted on December 4, 1996, that five of the ten channels had
been constructed and placed into operation at the authorized
Squaw Mountain site. Additionally, Falcon asserts that High
Voltage was not notified that the license for Station WPIZ573
had been cancelled until late September 1998, when FCC agents
from the Denver Office inspected the Squaw and Thorodin
Mountain sites. Falcon concedes that High Voltage was
unsuccessful in achieving total compliance with the
Commission's rules, but argues that the forfeitures should be
rescinded or substantially reduced in light of High Voltage's
good faith in attempting to comply with the Commission's
rules. Finally, Falcon requests that the license for Station
WPIZ573 be reinstated for the five channels at the Squaw
Mountain site.8
III. DISCUSSION
8. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this
Act.''9 We find that Falcon operated the 900 MHz trunked
radio system without a valid license in willful and repeated
violation of Section 301 of the Act. Nevertheless, we agree
with Falcon that the circumstances presented here justify a
substantial reduction of the forfeitures assessed or proposed
in this proceeding. We note in particular that since Falcon's
STA request, granted on December 4, 1996, indicated
construction of the Squaw Mountain site more than a year
before the license for that facility was cancelled, and since
Falcon did not receive notice of the cancellation, Falcon may
have reasonably - albeit mistakenly - believed that the
facility was duly authorized. Thus, a $20,000 forfeiture for
unauthorized operation is unwarranted and we rescind the
$20,000 forfeiture issued to Falcon for its unlicensed
operation of a 900 MHz trunked radio system at Squaw Mountain.
In addition, we reduce the forfeiture amount for Falcon's
unlicensed operation of a 900 MHz trunked radio system at
Thorodin Mountain from $20,000 to $5,000. Finally, we caution
Falcon to exercise greater diligence in submitting all
appropriate filings to the Commission on a timely basis.
9. Regarding Falcon's request for reinstatement of the
license for Station WPIZ573 for the five channels at the Squaw
Mountain site, a forfeiture proceeding is not an appropriate
vehicle for seeking reinstatement of a cancelled license. If
Falcon wishes to seek reinstatement of the license, it should
file a request for reinstatement with the Wireless
Telecommunications Bureau.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED, pursuant to Section 503(b)
of the Communications Act of 1934, as amended,10 and Sections
0.111, 0.311 and 1.80(f)(4) of the Rules,11 Falcon Radio,
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
five thousand dollars ($5,000) for unauthorized operation of a
radio station in willful and repeated violation of Section 301
of the Act.
11. IT IS FURTHER ORDERED that the forfeiture in the amount
of twenty thousand dollars ($20,000) issued to Falcon Radio,
Inc., NAL/Acct. No. 915DV0005, IS RESCINDED.
12. IT IS FURTHER ORDERED that the December 20, 1999
petition for reconsideration of the Forfeiture Order filed by
Falcon Radio, Inc. IS GRANTED TO THE EXTENT INDICATED HEREIN.
13. IT IS FURTHER ORDERED that, pursuant to Section 405 of
the Act and Section 1.106(f) of the Rules, the January 24,
2000 petition for reconsideration of the Forfeiture Order
filed by Falcon Radio, Inc. IS DISMISSED as untimely.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules12 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.13 Payment shall be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note NAL/Acct. No. 915DV0006. 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. 20554.14
15. IT IS FURTHER ORDERED that, a copy of this Forfeiture
Order shall be sent by Certified Mail Return Receipt Requested
to Falcon Radio, Inc. at 7340 South Alton Way, Suite 2,
Englewood, Colorado 80112 and by first class mail to Benjamin
J. Aron, Esq., Schwaninger & Associates, P.C., 1835 K Street,
N.W., Suite 650, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability, NAL/Acct. No. 915DV0005
(released September 15, 1999).
3 Notice of Apparent Liability, NAL/Acct. No. 915DV0006
(released September 15, 1999).
4 This pleading was styled as a ``Petition for
Reconsideration'' of the Thorodin Mountain NAL. Pursuant to
Section 1.80(f)(3) of the Rules, 47 C.F.R. § 1.80(f)(3), we will
treat this pleading as a response to the NAL.
5 Falcon Radio, Inc., DA 99-2961 (Enf. Bur., released December
21, 1999).
6 Pursuant to Section 1.80(f)(3) of the Rules, the subject of
an NAL generally has 30 days from the date of the NAL to file a
response. 47 C.F.R. § 1.80(f)(3).
7 47 C.F.R. § 1.106. Falcon filed a petition for
reconsideration of the Forfeiture Order on January 24, 2000,
again requesting that we associate its response to the Thorodin
Mountain NAL with the Squaw Mountain NAL. Because this petition
was filed more than 30 days after the release of the Forfeiture
Order, it is untimely and therefore will not be considered. See
47 U.S.C. § 405; 47 C.F.R. § 1.106(f). Nevertheless, we note
that the substantive arguments advanced by Falcon in this
petition were included in the December 20, 1999 pleading, which
we are considering here.
8 Falcon does not seek reinstatement of the five channels at
the Thorodin Mountain site, four of which have been relicensed to
another entity.
9 47 U.S.C. § 301.
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 C.F.R. § 1.80.
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.