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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        )       NAL/Acct. No: 200932940001  
     Vacation Ownership Arizona                                              
     Management                          )                  FRN: 0017995077  
                                                                             
     Licensee of WPPF349 and WQGX784     )                                   
                                                                             
     Scottsdale, Arizona                 )))))                               


                                FORFEITURE ORDER

   Adopted: December 8, 2009 Released: December 10, 2009

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of twelve thousand, eight hundred dollars ($12,800) to 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, for willful and repeated violation of
       Section 1.903(a)  of the Commission's Rules ("Rules"). On December 11,
       2008, the Enforcement Bureau's San Diego Office issued a Notice of
       Apparent Liability for Forfeiture ("NAL") in the amount of $16,000 to
       Westin for operating mobile relay stations on unauthorized
       frequencies. In this Order, we consider Westin's arguments that the
       proposed forfeiture amount should be reduced because of its good faith
       efforts to comply with the rules and its history of compliance with
       the Rules.

   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.

   8. On December 11, 2008, the San Diego Office issued a NAL in the amount
   of $16,000 to Westin. In the NAL, the San Diego Office found that Westin
   apparently willfully and repeatedly violated Section 1.903(a) of the Rules
   by operating mobile relay stations on unauthorized frequencies. Westin
   filed a response ("Response") to the NAL on January 22, 2009. In its
   Response, Westin argues that the proposed forfeiture amount should be
   reduced because of it good faith efforts to comply with the Rules and its
   history of compliance with the Rules.

   III. DISCUSSION

   9 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. In examining the
   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.

   10. 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.

   11. Westin argue that the forfeiture amount in this case should be reduced
   because of Westin's good faith efforts to comply with the Rules by relying
   on a consultant that it had retained expressly for its expertise in the
   area of establishing a radio communications program in compliance with all
   applicable law and regulations. Reductions based on good faith efforts to
   comply generally involve situations where violators demonstrated that they
   initiated measures to correct or remedy violations, or that they had
   established compliance programs in place, prior to the Commission's
   involvement. We find that Westin's efforts concerning attempted
   compliance, by hiring a consultant to work with them to install their
   radio system does not rise to the level of a compliance plan, and we find
   that Westin made no effort to correct the violations until notified by the
   Commission. Therefore, we see no basis for a good faith reduction.

   12. We also see no basis for reduction of the forfeiture amount based on
   the fact that the hired consultant ultimately failed to ensure compliance
   with Rules. The Commission has long held that "licensees are responsible
   for the acts and omission of their employees and independent contractors,"
   and has consistently "refused to excuse licensees from forfeiture
   penalties where the actions of employees or independent contractors have
   resulted in violations." Westin also states that a new consultant, hired
   after the inspection by the San Diego agents, effectively assisted Westin
   in getting into full compliance. We note that this does not provide a
   basis for a downward adjustment in the proposed forfeiture, as the
   Commission has stated in the past that a licensee is expected to correct
   errors when they are brought to the licensee's attention and that such
   correction is not grounds for a downward adjustment in the forfeiture.

   13. Westin also argues that it has a history of compliance with the Rules.
   We have reviewed our records and we agree. We therefore reduce the
   proposed forfeiture to $12,800.

   14. We have examined the 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 Westin willfully and repeatedly
   violated Section 1.903(a) of the Rules. Considering the entire record and
   the factors listed above, we find that reduction of the proposed
   forfeiture to $12,800 is warranted.

   IV. ORDERING CLAUSES

   15. 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, HST Kierland LLC d/b/a Westin
   Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation Ownership
   Arizona Management, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
   $12,800 for willfully and repeatedly violating Sections 1.903(a) of the
   Rules.

   16. 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/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. 

   16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
   Class Mail and Certified Mail Return Receipt Requested 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

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

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

   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.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932940001
   (Enf. Bur., Western Region, San Diego Office, released December 11, 2008).

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

   Westin requested, and received, an extension of time to respond to the
   NAL, from the San Diego Office.

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

   47 C.F.R. S: 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

   47 U.S.C. S: 503(b)(2)(E).

   See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003), recon. denied, 18
   FCC Rcd 25481 (2003).

   See Tidewater Communications, Inc., 18 FCC Rcd 5524, 5525 (EB 2003).

   We note that information provided to the Commission by the complainant in
   April 2008 indicated that the unauthorized operations on 462.6125 MHz and
   467.6125 MHz had previously been brought to the attention of Westin by a
   private sector FCC licensee.

   Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
   21861, 21863-64 (2002) ("Eure"); Wagenvoord Broadcasting Co., Memorandum
   Opinion and Order, 35 FCC 2d 361 (1972); see also, Rama Communications,
   Inc., Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (EB 2008)
   ("[W]here lapses in compliance occur, neither the negligent acts nor
   omissions of station employees or agents, nor the subsequent remedial
   actions undertaken by the licensee, excuse or nullify the licensee's rule
   violation.")

   See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
   Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).

   AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002); see supra
   Rama Communications, Inc.

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.903(a).

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

   Federal Communications Commission DA 09-2568

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   Federal Communications Commission DA 09-2568