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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Page-Comm ) File No. EB-00-TS-078
Licensee of Paging Station KPS323) NAL/Acct. No. 200132100006
Leavenworth, Texas )
Adopted: March 19, 2001 Released: March 21, 2001
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to Page-Comm for willful violation of Section 301 of
the Communications Act of 1934, as amended (``Act'')1 and
Section 22.3 of the Commission's Rules (``Rules'').2 The
noted violation involves Page-Comm's operation of a paging
system without Commission authorization.
2. On November 29, 2000, the Enforcement Bureau issued a
Notice of Apparent Liability for Forfeiture (``NAL'') in the
amount of five thousand dollars ($5,000) to Page-Comm for the
noted violation.3 Page-Comm filed a response to the NAL on
December 21, 2000.
3. Page-Comm's authorization for Station KPS323 expired on
April 1, 1999. On January 5, 2000, Page-Comm filed an
application for renewal of the authorization for that station
and requested a waiver of Section 1.949 of the Rules.4 Page-
Comm's waiver request indicated that Page-Comm operated paging
facilities without authorization between April 1, 1999 and
January 5, 2000. On February 20, 2000, the Wireless
Telecommunications Bureau granted Page-Comm's waiver request
and reinstated its authority to operate Station KPS323.
4. On November 29, 2000, the Enforcement Bureau issued an
NAL for a forfeiture in the amount of $5,000 to Page-Comm for
operating a paging system without Commission authorization in
violation of Section 301 of the Act and Section 22.3 of the
Rules. Page-Comm filed a response to the NAL on December 21,
2000, seeking cancellation or reduction of the forfeiture. In
this response, Page-Comm argues that the one-year statute of
limitations in Section 503(b)(6)(B) of the Act5 precludes the
Commission from assessing a forfeiture for any unauthorized
operation of Station KPS323 that occurred more than one year
prior to the date of the NAL, and that the unauthorized
operation of Station KPS323 for the period from November 29,
1999 to January 21, 2000,6 does not warrant a $5,000
forfeiture. In addition, Page-Comm asserts that the proposed
forfeiture should be reduced because the subject violation
involves only a single license and the Commission has imposed
the same forfeiture amount, $5,000, in similar cases involving
multiple paging licenses. Page-Comm also argues that the
proposed forfeiture should be reduced because (1) the
violation was purely a ministerial oversight and Page-Comm
took steps to come into compliance with the Commission's rules
as soon as it became aware that the license had expired; (2)
the proposed forfeiture significantly exceeds the value of the
license; (3) the unauthorized operation of Station KPS323 did
not cause interference or otherwise negatively affect the
provision of any other telecommunications service; and (4)
Page-Comm has a history of overall compliance with the
5. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503 of the
Communications Act of 1934, as amended (``Act''),7 Section
1.80 of the Rules, 8 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). In examining Page-Comm's response, Section
503(b) of the Act requires that the Commission 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.9
6. Section 301 of the Act sets forth the general mandate
that no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio
within the United States except under and in accordance with
the Act and with a license. Section 22.3 of the Rules
provides, in pertinent part, that stations in the Public
Mobile Service must be operated with a valid Commission
authorization. We conclude that Page-Comm willfully and
repeatedly violated Section 301 of the Act and Section 22.3 of
the Rules by operating Station KPS323 without Commission
authorization between April 1, 1999 and January 5, 2000.
7. Page-Comm is correct that the one-year statute of
limitations in Section 503(b)(6)(B) of the Act precludes the
Commission from imposing a forfeiture for the unauthorized
operation of Station KPS323 that occurred before November 29,
1999 (one year prior to the issuance of the NAL). However,
the Commission may lawfully look at facts arising before that
date in determining an appropriate forfeiture amount. In
Eastern Broadcasting Corp., 10 FCC 2d 37 (1967), the
Commission held that it could consider matters occurring
outside the statute of limitations period in determining the
appropriate forfeiture for acts that occurred inside the
statute of limitations period. Similarly, in Roadrunner
Transportation, Inc., 15 FCC Rcd 9669, 9671 (2000), the
Commission considered the fact that the violations began in
1996, which was outside the applicable statute of limitations
period, to establish the context for determining an
appropriate forfeiture amount for violations that occurred
from June 1, 1998 to September 29, 1998. In the instant case,
we found Page-Comm apparently liable for a forfeiture for the
unauthorized operation of Station KPS323 for the period from
November 29, 1999 to January 5, 2000. While we did not find
Page-Comm apparently liable for a forfeiture for conduct which
occurred prior to November 29, 1999, we properly considered
the fact that the unauthorized operation of Station KPS323
began April 1, 1999 to place the violation in context and
establish the duration and continuing nature of the violation.
Moreover, as noted in the NAL, Page-Comm operated a station
without Commission authorization under circumstances where the
Commission has envisioned ``more significant fines or
forfeitures'' for violations in excess of 30 days.10 Thus, we
reject Page-Comm's argument that its unauthorized operation of
Station KPS323 for the period from November 29, 1999 to
January 20, 2000 does not warrant a $5,000 forfeiture.
8. In addition, we disagree with Page-Comm's assertion
that the proposed forfeiture should be reduced because the
Commission has imposed the same $5,000 forfeiture amount in
similar cases involving multiple paging licenses. In the
cases cited by Page-Comm,11 we declined to engage in a strict
mathematical exercise of multiplying the base forfeiture
amount times the number of stations involved and instead
determined that the number of stations should be treated as an
aggravating factor warranting an increased forfeiture where a
larger number of stations is involved.12 The Commission has
previously used this approach in other contexts,13 and we
believe that it was appropriately used in this context as
9. Of Page-Comm's remaining arguments, only its history of
compliance argument warrants mitigation of the forfeiture
amount. While we recognize that unauthorized operation in the
context of failure to file a renewal application is not as
serious as in other contexts (e.g., pirate radio), that fact
has been reflected in the original downward adjustment from
the $10,000 base amount.14 We do not believe a further
reduction on the basis that the failure to file a renewal
application was a ``ministerial oversight'' is appropriate,
particularly given the Commission's statement quoted above.
Additionally, Page-Comm's remedial actions to correct the
violation, while commendable, are not a mitigating factor.
See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973). Regarding
Page-Comm's argument that the proposed forfeiture amount
exceeds the value of the license, we note that Page-Comm does
not claim that payment of the forfeiture will create a
financial hardship or provide documentation to support a
financial hardship claim. Further, an absence of interference
does not entitle Page-Comm to a reduction of the forfeiture
amount under the Commission's downward adjustment criteria for
forfeitures.15 However, after considering Page-Comm's overall
history of compliance with the Commission's rules, we conclude
that it is appropriate to reduce the forfeiture from $5,000 to
10. We have examined Page-Comm's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that Page-Comm has failed to provide sufficient
justification for canceling the proposed forfeiture amount,
but has provided justification for reducing it to $3,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,16 Page-Comm IS LIABLE FOR A MONETARY FORFEITURE in
the amount of three thousand dollars ($3,000) for operating a
paging system without Commission authorization in willful and
repeated violation of Section 301 of the Act and Section 22.3
of the Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules17 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.18 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. 200132100006. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.19
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Page-
Comm, Attn.: Kent N. Redford, P.O.Box 493, Leavenworth, KS
66048, and its counsel, Pamela Gaary, Esq., Lukas, Nace,
Gutierrez & Sachs, Chartered, 1111 19th Street, N.W. Suite
1200, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 301.
2 47 C.F.R. § 22.3.
3 Page-Comm, DA 00-2666 (Enf. Bur., rel. November 29, 2000).
4 47 C.F.R. § 1.949.
5 Section 503(b)(6)(B) of the Act provides that ``[n]o
forfeiture penalty shall be determined or imposed against any
person under this subsection if ¼ such person does not hold a
broadcast station license issued under title III of this Act and
if the violation charged occurred more than 1 year prior to the
date of issuance of the required notice or notice of apparent
liability.'' 47 U.S.C. § 503(b)(6)(B).
6 Page-Comm states that the Wireless Bureau granted it
Special Temporary Authority on January 21, 2000 to continue
operating Station KPS323.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 See Biennial Regulatory Review -- Amendment of Parts 0, 1,
13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the
Commission's Rules to Facilitate the Development and Use of the
Universal Licensing System in the Wireless Telecommunications
Services, 14 FCC Rcd 11476, 11485-11486 (1999).
11 Data Investments, Inc. d/b/a Star Communications, DA 00-
2668 (Enf. Bur., rel. November 29, 2000); Joe L. Ford d/b/a Ford
Communications, DA 00-2665 (Enf. Bur., rel. November 29, 2000).
12 See e.g., Commercial Radio Service Corp., DA 00-2755 (Enf.
Bur., rel. December 11, 2000) (treating the number of stations as
an aggravating factor and assessing a $6,000 forfeiture where the
licensee operated eleven stations without Commission
authorization after expiration of the licenses).
13 See Roadrunner Transportation, Inc., 15 FCC Rcd 9669, 9672
(2000) (declining to use a strict mathematical formula of
multiplying the base forfeiture amount for an unauthorized
transfer of control times the number of stations involved);
Central Illinois Public Service Company, 15 FCC Rcd 1750, 1753
14 Page-Comm, DA 00-2666 (Enf. Bur., rel. November 29, 2000).
15 See Policy Statement, 12 FCC Rcd at 17116; 47 C.F.R. §
1.80(b), note to paragraph (b)(4), Section II. Adjustment
Criteria for Section 503 Forfeitures.
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 C.F.R. § 1.80.
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.