Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.


                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                                                      
     ESP Leasing Corporation                    File Number: EB-05-LA-071  
     Brookfield, Illinois                     NAL/Acct. No.: 200632900006  
     Operator of Unlicensed Land Mobile                   FRN: 0004161469  
     Transmitter Near Las Vegas, Nevada                                    

                                FORFEITURE ORDER

   Adopted: December 26, 2006  Released: December  28, 2006

   By the Regional Director, Western Region, Enforcement Bureau:


    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of six thousand dollars ($6,000) to ESP Leasing Corporation
       ("ESP"), for willful and repeated violations of Section 301 of the
       Communications Act of 1934, as amended, ("the Act").  On February 9,
       2006, the Los Angeles Office issued a Notice of Apparent Liability for
       Forfeiture ("NAL") in the amount of $10,000 to ESP after determining
       that ESP operated an unlicensed land mobile transmitter on 856.3625
       MHz near Las Vegas, Nevada. In this Order, we consider ESP's requests
       that the forfeiture amount be reduced given the nature of the
       violation, and ESP's record of compliance as a Commission licensee.


    2. On February 25, 2005, while conducting a routine audit of installed
       radio equipment on Black Mountain, in Las Vegas, Nevada, an agent of
       the Enforcement Bureau's Los Angeles Office discovered six, 800 MHz,
       land-mobile transmitters installed in rented space in one of the
       mountaintop buildings. The callsign found on the equipment was
       WPOX419. Six frequencies were listed on the six transmitters,
       including 856.3625 MHz, and one of the transmitters was in operation.
       The name "ESP Leasing" and a telephone number were also displayed on
       the transmitters. The agent noted that, for the Black Mountain
       location, no record for the transmitters could be found in the
       Commission's database of licensed transmitters.

    3. On March 2, 2005, the Los Angeles agent researched the Commission's
       records for the callsign and frequency information displayed on the
       transmitters and determined that the transmitters were associated with
       callsigns WPOX419 and WPOX417. The licensed location for these
       stations, however, is Mt. Potosi, Nevada, a site approximately 20
       miles from Black Mountain. The Commission's records showed that ESP
       was the licensee of WPOX419 and WPOX417, until December 14, 2004, when
       the licenses and transmitters were assigned to AIRPEAK Communications,
       Inc. The owner of the rented building on Black Mountain reported that
       ESP had been paying the rent for the transmitters' space since April
       1, 2000.

    4. On April 27, 2005, Los Angeles agents again visited the Las Vegas,
       Nevada area. While monitoring the frequencies of the transmitters
       which had been found on Black Mountain, the agents heard significant
       traffic on 856.3625 MHz, without callsign identification. The agents
       used direction finding techniques to locate the source of the signals
       as Black Mountain. The agents then contacted a representative of
       AIRPEAK, who advised that AIRPEAK had recently acquired the WPOX417
       and WPOX419 licenses from ESP but had not yet constructed new
       transmitters on Mt. Potosi. The agents then contacted ESP, and a
       representative confirmed that the current operations on 856.3625 MHz
       from Black Mountain were from ESP's transmitter, and that the
       operations had been on-going for many months. When agents asked by
       what authority the transmitter was being operated, the ESP
       representative asked for an opportunity to research ESP's records. On
       April 28, 2005 the Commission's agents again monitored unidentified
       traffic on 856.3625 MHz, and again confirmed with direction finding
       techniques that Black Mountain was the source. Later that day, the
       representative from ESP contacted the agents and advised that several
       transmitters had been mistakenly located on Black Mountain, and that
       ESP would cease operations with them as soon as possible.

    5. On August 25, 2005, the Los Angeles Office issued a Letter of Inquiry
       ("LOI") to ESP concerning ESP's ownership and operation of the
       unlicensed transmitters on Black Mountain. ESP sent a response
       ("Response") to the LOI on September 9, 2005. In its Response, ESP
       stated that it had mistakenly relocated the six transmitters to Black
       Mountain while it was still the licensee, and had subsequently
       assigned its license for the frequencies, but had been operating the
       transmitters from Black Mountain since approximately September 2004.
       ESP also stated that it ceased operation of the transmitters on April
       28, 2005.

    6. On February 9, 2006, the Los Angeles Office issued a NAL in the amount
       of $10,000 to ESP. ESP filed a response to the NAL on March 7, 2006
       ("Response"). In the NAL, the Los Angeles Office determined that ESP
       apparently willfully and repeatedly violated Section 301 of the Act by
       operating an unlicensed land mobile transmitter on 856.3625 MHz near
       Las Vegas, Nevada. In its Response, ESP does not dispute the facts in
       the NAL, but requests a reduction in the forfeiture amount based on
       the fact that ESP at one point in time had a license for 856.3625 MHz
       at another site in the same Las Vegas market; that the operation at
       the unauthorized location caused no known interference; and because of
       ESP's history of FCC rule compliance.


    7. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act, Section 1.80 of the Rules, 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) ("Forfeiture Policy
       Statement"). In examining ESP'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

    8. Section 301 of the Act requires 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. While it still held
       licenses WPOX419 and WPOX417, ESP relocated its transmitters without
       authority to Black Mountain, Nevada, and, from December 15, 2004, to
       April 28, 2005, ESP operated a transmitter on Black Mountain without a

    9. ESP does not dispute the facts detailed in the NAL. Instead, it
       requests that the forfeiture amount be reduced because ESP previously
       held a license for operation on 856.3625 MHz at a different location
       but in the same market where the violation took place. We note that
       ESP's authorization to operate on 856.3625 MHz was assigned to AIRPEAK
       on December 14, 2004, and, therefore, ESP was no longer authorized to
       operate on that frequency. ESP did not have an authorization to
       operate on 856.3625 MHz beginning December 15, 2004, and it did not
       stop its unauthorized operation until notified by the Los Angeles
       Office on April 27, 2005. ESP acknowledged in its response to the Los
       Angeles Office's LOI that while it still held the authorizations for
       WPOX419 and WPOX417, in September 2004, it relocated the transmitters
       for those stations without authority. As noted in the NAL, that
       unauthorized relocation in September 2004 violated Section 1.903(a) of
       the Rules. We do not agree that we should reduce the proposed
       forfeiture to $4,000 because, as ESP opines, "the violation might
       properly be characterized as operation at an unauthorized location,
       with a base forfeiture of $4,000 . . . ." To do so ignores the fact
       that ESP had no authorization to operate. However, we do find that
       that ESP's unlicensed operation is not analogous to the "intentional
       unlicensed operation of a `pirate' station operator who operates in
       flagrant violation of Commission Rules." We therefore reduce ESP's
       forfeiture amount to $8,000.

   10. ESP also alleges that a downward reduction is warranted because the
       unlicensed operation did not cause interference. We disagree. An
       absence of interference during its unlicensed operation does not
       entitle ESP to a reduction of the forfeiture amount under the
       Commission's downward adjustment criteria for forfeitures.

   11. ESP also requests that the forfeiture amount be reduced because it has
       a history of compliance as a Commission licensee. We have reviewed our
       records and we find no instances of ESP having received a forfeiture
       or violation notice. Consequently, we reduce ESP's forfeiture amount
       by another $2,000.

   12. We have examined ESP's response to the NAL pursuant to the statutory
       factors above, and in conjunction with the Forfeiture Policy
       Statement. As a result of our review, we conclude that ESP willfully
       and repeatedly violated Section 301 of the Act.  Considering the
       entire record and the factors listed above, we find that reduction of
       the proposed forfeiture is warranted, given the circumstances
       surrounding ESP's unauthorized operation and its compliance record
       with the Commission's Rules. Accordingly, the forfeiture amount is
       reduced from ten thousand dollars ($10,000) to six thousand dollars


   13. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended ("Act"), and Sections 0.111,
       0.311 and 1.80(f)(4) of the Commission's Rules, ESP Leasing
       Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       $6,000 for willfully and repeatedly violating Section 301 of the Act.

   14. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules 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. 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/Acct. No.
       and FRN No. referenced above.  Payment by check or money order may be
       mailed to Federal Communications Commission, P.O.
       Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail may
       be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
       Pittsburgh, PA 15251.   Payment by wire transfer may be made to ABA
       Number 043000261, receiving bank Mellon Bank, and account number 911-
       6106. Requests for full payment under an installment plan should be
       sent to: Associate Managing Director - Financial Operations, Room
       1A625, 445 12th Street, S.W., Washington, D.C. 20554.

   15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to ESP Leasing
       Corporation at its address of record, and Elizabeth R. Sachs, Esquire,
       Lukas, Nace, Gutierrez & Sachs, Chartered, its counsel of record.


   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   47 U.S.C. S 301.

   The other frequencies listed were 857.3625 MHz, 858.3625 MHz, 859.3625
   MHz, 860.3625 MHz and 859.6375 MHz.

   The callsign WPOX419 was listed in the Commission's Universal Licensing
   Service ("ULS") database as licensed to AIRPEAK Communications, LLC, which
   authorized frequencies 858.3625 MHz, 859.3625 MHz and 860.3625 MHz on Mt.
   Potosi. Another AIRPEAK license, WPOX417, authorized 856.3625 MHz and
   857.3525 MHz, also at Mt Potosi.

   See Application Nos. 0001888410 and 0001970542.

   Prior to the license assignment, ESP executed, and filed with the
   Commission, a "De Facto Transfer Lease" of the licenses to AIRPEAK which
   commenced on October 8, 2004 and expired on April 6, 2005.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632900006
   (Enf. Bur., Western Region, Los Angeles Office, released February 9,

   47 U.S.C. S 301.

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

   47 C.F.R. S 1.80.

   47 U.S.C. S 503(b)(2)(D).

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

   Response at 2.

   Gateway Security Systems, Inc., 18 FCC Rcd 24026, 24029 (EB 2003).

   47 C.F.R. S 1.80(b), note to paragraph (b)(4), Section II. Adjustment
   Criteria for Section 503 Forfeitures. See Page-Comm, 16 FCC Rcd 6842, 6845
   (EB 2001). See also New York Radio Service, 19 FCC Rcd 10704 (EB 2004).

   47 U.S.C. S 301.

   47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 06-2588



   Federal Communications Commission DA 06-2588