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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In re )
)
SELECTPATH HOLDING, INC. ) File No. EB-02-IH-0892
) NAL/Acct. No. 200332080006
Applicant for Wireless ) FRN 0001610013
Telecommunications Bureau Radio )
Service Authorization )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 26, 2002 Released:
December 27, 2002
By the Chief, Investigations and Hearings Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that SelectPath Holding, Inc. (``SelectPath'')
failed to timely file two of its three ``long-form'' applications
(FCC Form 601s) following completion of the Commission's Lower
and Upper Paging Bands Auction (``Auction No. 40''), in apparent
willful and repeated violation of Section 1.2107(c) of the
Commission's rules.1 We conclude that SelectPath is apparently
liable for a forfeiture in the amount of $3,000.
II. BACKGROUND
2. On December 5, 2001, Commission staff completed the
auction of 15,514 licenses in Auction No. 40. SelectPath was
among the participants in that auction. On December 11, 2001,
the Wireless Telecommunications Bureau issued a Public Notice
that provided detailed information concerning specific post-
auction obligations of winning bidders.2 The Public Notice
established December 27, 2001, as the deadline for winning
applicants to submit their long-form applications. The Public
Notice also announced that SelectPath was a winning bidder in
Auction No. 40.3
3. After the Commission's receipt and initial review of
the Auction No. 40 long-form applications, Commission staff
noticed that SelectPath had failed to file two of its three
required long-form applications. Commission staff subsequently
contacted SelectPath's representative. Thereafter, on January
10, 2002, SelectPath submitted a Waiver Request and
electronically filed its long-form applications. In its Waiver
Request, SelectPath explained that it missed the long-form filing
deadline due to inadvertence and ``administrative oversight.''4
SelectPath states that it did not realize that a separate long-
form application was required for each distinct paging radio
service code and therefore it only filed one long-form
application.5
III. DISCUSSION
4. Section 1.2107(c) of the Commission's rules provides
that:
A high bidder that meets its down payment obligations
in a timely manner must, within ten (10) business days
after being notified that it is a high bidder, submit
an additional application (the ``long-form
application'') pursuant to the rules governing the
service in which the applicant is the high bidder.6
This section further provides that long-form applications
must be filed electronically.7
5. The purpose of the long-form applications is to provide
vital information concerning winning bidders and their
qualifications to be Commission licensees. Public notice of
acceptance of a winning bidder's long-form applications triggers
the establishment of the pleading cycle for petitions to deny.8
The timely filing of these long-form applications is thus
essential to the efficiency of the competitive bidding licensing
process.
6. On April 9, 2001, Commission staff first released a
Public Notice announcing the upcoming Lower and Upper Paging
Bands Auction.9 Therein, auction participants were informed of
their post-auction filing obligations in the event they were
winning bidders. Thus, SelectPath was on notice even before the
auction commenced that, if it were a winning bidder, it would
have to electronically submit a properly completed long-form
application within ten business days after release of the auction
closing notice. In addition, on December 11, 2001, Commission
staff issued a post-auction Public Notice establishing December
27, 2001, as the filing deadline and describing in detail the
long-form application filing requirements. That Public Notice
expressly stated: ``Note: For Auction 40, you must file a
separate application for each distinct radio service code for
which you have won markets.''10 Nevertheless, SelectPath failed
to file two of its three long-form applications on time. In
light of these facts, we conclude that SelectPath failed to file
all of its long-form applications by the established and well
publicized deadline, in willful and repeated violation of Section
1.2107(c) of the Commission's rules.11
7. Section 503(b)(1)(B) of the Communications Act of 1934,
as amended, provides that any person who willfully or repeatedly
fails to comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty.12 The guidelines contained in
the Commission's Forfeiture Policy Statement specify a base
forfeiture amount of $3,000 for failure to file required
information.13 The guidelines also permit the Commission to
issue a higher or lower forfeiture amount based on such factors
as the nature, circumstances, extent and gravity of the
violation, and, with respect to the violator, the degree of
culpability, history of any prior offenses, ability to pay, and
such other matters as justice may require. SelectPath does not
dispute that it failed to timely file all of the necessary forms.
We believe a forfeiture is appropriate in this case, and see no
basis for departing from the base forfeiture amount. Thus, we
propose a forfeiture in the amount of $3,000. This amount is
consistent with other cases involving similar transgressions.14
IV. ORDERING CLAUSES
8. ACCORDINGLY, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, SelectPath Holding, Inc. is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
$3,000 for willfully and repeatedly violating Section 1.2107(c)
of the Commission's rules.
9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80, that within thirty (30)
days of the release of this Notice, SelectPath SHALL PAY the full
amount of the proposed forfeiture, or SHALL FILE a written
response seeking reduction or cancellation of the proposed
forfeiture.
10. 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 MUST INCLUDE
the FCC Registration Number (FRN) referenced above and the
NAL/Acct. No. referenced above.
11. The response, if any, must be mailed to Melanie A.
Godschall, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the NAL/Acct.
No. referenced above.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent 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 respondent'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.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.15
14. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Investigations and Hearings
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
15. IT IS FURTHER ORDERED that copies of this Notice shall
be sent, by Certified Mail -- Return Receipt Requested, to
SelectPath Holding, Inc., 10820 Central Avenue, SE, Albuquerque,
NM 87123; and to counsel for SelectPath, George L. Lyon, Jr.,
Esq., Lukas Nace Gutierrez & Sachs, 1111 19th Street, NW, Ste.
1200, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Charles W. Kelley
Chief, Investigations and Hearings
Division
Enforcement Bureau
October 2002
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 1.2107(c).
2 ``Lower and Upper Paging Bands Auction Closes: Winning Bidders
Announced,'' Public Notice, 16 FCC Rcd 21821 (2001) (``Closing
PN'').
3 Id. at Attachment A.
4 See SelectPath's Waiver Request, FCC File Nos. 0000729873,
0000729897 (dated Jan. 10, 2001) (``Waiver Request''). The
Wireless Telecommunications Bureau subsequently granted the
Waiver Request. See In the Matters of City Page & Cellular
Services, Inc. d/b/a City Beepers, et al., Order, DA 02-3558
(Policy and Rules Branch, CWD, rel. Dec. 23, 2002).
5 See Waiver Request at 5.
6 47 C.F.R. § 1.2107(c).
7 Id.
8 See 47 C.F.R. § 1.2108(b).
9 See ``Lower and Upper Paging Bands Auction Scheduled for June
26, 2001; Notice and Filing Requirements, Minimum Opening Bids,
Upfront Payments and Other Procedural Issues,'' Public Notice,
16 FCC Rcd 7657 (2001).
10 See Closing PN, 16 FCC Rcd at 21857.
11 The Commission has held that an act or omission is
``willful'' if it is a conscious and deliberate act or omission,
whether or not there is any intent to violate the rule.
Southern California Broadcasting Company, 6 FCC Rcd 4387 (1991).
Furthermore, a continuing violation is ``repeated'' if it lasts
more than one day. Id. at 4388.
12 47 U.S.C. § 503(b)(1)(B).
13 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17114 (1997)
(``Forfeiture Policy Statement''); recon denied, 15 FCC Rcd 303
(1999).
14 See e.g., PCS Partners, L.P., 16 FCC Rcd 5547 (EB
2001)(forfeiture paid)(proposing a $3,000 forfeiture against
winning bidder that filed its long-form application four days
late and its ownership report two days late because of
administrative oversight); PinPoint Communications, Inc., 14 FCC
Rcd 6427 (PSPWD, WTB 1999) (proposing a $3,000 forfeiture
against winning bidder that filed its long-form application six
days late because of administrative oversight).
15 See 47 C.F.R. § 1.1914.