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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) File No. EB-98-DV-322
TACO TIME ) NAL Acct. No. 815DV0002
Rock Springs, Wyoming )
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications
Commission (the ``Commission'') and TACO TIME RESTAURANT
(``TACO TIME'') hereby enter into this Consent Decree for
the purpose of terminating a forfeiture proceeding
arising from an investigation related to TACO TIME's
unlicensed radio operations on 154.54 MHz and 154.51 MHz
in April and May, 1998.
BACKGROUND
2. Prompted by a complaint, the Commission's Denver Field
Office monitored and identified TACO TIME's radio
transmissions on Private Land Mobile Radio Service
frequency 154.54 MHz on April 10, 1998. Upon inspection
of the station by FCC agents, employees of TACO TIME were
unable to produce a valid FCC authorization for their
transmissions on 154.54 MHz, or for any other frequency.
TACO TIME was warned both orally and in writing to cease
all unlicensed radio operations and instructed to obtain
the appropriate FCC license before recommencing radio
activities. A subsequent investigation by FCC agents on
May 22, 1998 found that TACO TIME was conducting radio
transmissions on 154.51 MHz, and again found that TACO
TIME's employees were unable to produce a valid FCC
license authorizing such radio transmissions. On May 26,
1998, the Denver Field Office contacted TACO TIME about
the unlicensed radio use. TACO TIME admitted that it had
continued to operate the radio system after receiving the
warnings, but was unable to provide any evidence of
authority for its operation on either 154.54 MHz or
154.51 MHz.
3. On June 19, 1998, the Commission's Denver Field Office
issued a Notice of Apparent Liability for Forfeiture
(``NAL''), finding TACO TIME apparently liable for a
forfeiture in the amount of $11,000.1 The NAL concluded
that TACO TIME had committed ``willful and repeated
violations of Section 301 of the Communications Act of
1934, as amended (``Act''),''2 by operating a radio
transmitter without a license, and continuing to do so
after receiving oral and written warnings that such
conduct violated the Act.
4. On July 8, 1999, TACO TIME submitted a response to the
NAL in which it admitted that TACO TIME had used the
radio system without a license even after it was warned
not to do so, but claimed to have subsequently obtained
an FCC Form 572, Temporary Permit to Operate a Part 90
Radio Station, on May 30, 1998. TACO TIME also asserted
that an $11,000 fine would be an overwhelming hardship to
the business.
5. On February 16, 1999, the former Compliance and
Information Bureau issued a Forfeiture Order affirming
the $11,000 forfeiture amount.3 The Forfeiture Order
noted that TACO TIME did not obtain a Temporary Permit
for its operations until after the violations which
formed the basis for the forfeiture had occurred, and
that TACO TIME had continued to operate the system
despite being warned of its violation of the Act.
6. On March 11, 1999, TACO TIME submitted a letter
requesting review of the case. In that letter, TACO TIME
argued that it was not trying to circumvent the rules by
changing to a different frequency after being warned
about its unlicensed operation, but had merely switched
operations from 154.54 MHz to 154.51 MHz after the first
warning because it had already submitted an application
for the necessary license on 154.51 MHz, it needed the
radio system for the restaurant's operations, and it
sought to avoid causing interference on 154.54 MHz. TACO
TIME also attached copies of its corporate income tax
returns for 1995, 1996 and 1997 in support of its claim
that the $11,000 forfeiture would impose a financial
hardship.
7. On November 29, 1999, the Bureau issued a Memorandum
Opinion and Order (``MO&O'') reaffirming the $11,000
forfeiture, in which the Bureau reiterated that TACO TIME
had a responsibility to ensure that it complied with the
Act and the Commission's Rules for use of the radios
prior to their operation on any frequency.4 The MO&O
found TACO TIME's continued operation of the radios
without authorization, even after receiving oral and
written warnings, inexcusable. The MO&O further noted
that TACO TIME's gross revenues exceeded $1.2 million in
each of the three years presented in the tax returns, and
concluded that an $11,000 forfeiture was not excessive as
it would amount to less than one percent of TACO TIME's
gross revenues.
8. On March 10, 2000, TACO TIME conferred by telephone
with Commission staff. At this conference, TACO TIME
informed the Commission that it had rectified the
violations shortly after the inspections by the Denver
Field Office, and had been in compliance with the
Commission's Rules for more than a year. Prior to the
telephone conference, TACO TIME had applied for and been
granted a license to operate a radio transmitter on
frequency 468.48750 MHz with five watts of power. The
license for Station WPMN593 was issued on October 7,
1998.
DEFINITIONS
9. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``Commission'' means the Federal
Communications Commission.
(b) The ``Bureau'' means the Enforcement Bureau of the
Commission.
(c) ``TACO TIME'' means Taco Time Restaurants, a
Commission licensee in the Private Mobile Radio
Service, Call Sign WPMN593.
(d) ``MO&O'' means Taco Time, 15 FCC Rcd 1319 (Enf.
Bur. 1999).
(e) ``Unlicensed Operations'' means the radio
transmissions made by TACO TIME prior to the
issuance of the license for Station WPMN593 on
October 7, 1998.
(f) ``Enforcement Proceeding'' means the investigation
of and the series of Commission orders concerning
the Unlicensed Operations, culminating with the
MO&O.
(g) The ``Order'' means the Bureau's order adopting
this Consent Decree.
(h) The ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151 et seq.
AGREEMENT
10. TACO TIME acknowledges and agrees that the Commission
has jurisdiction over the matters referenced in this
Consent Decree and that the Bureau has the authority to
enter into and adopt this Consent Decree.
11. TACO TIME agrees not to contest the findings in the
MO&O that TACO TIME violated Section 301 of the Act with
respect to the radio transmissions on 154.54 MHz and
154.51 MHz prior to October 7, 1998, provided that these
findings shall not be used by the Bureau against TACO
TIME in any other current or future proceedings before
the Bureau, except as set forth in paragraph 18 of this
Consent Decree.
12. TACO TIME and the Bureau agree that this Consent Decree
does not constitute an adjudication of the merits, or any
finding on the facts or law regarding any violations
committed by TACO TIME arising out of the Enforcement
Proceeding.
13. TACO TIME shall make a voluntary contribution to the
United States Treasury in the amount of $1,500 within 15
calendar days after the Order adopting this Consent
Decree is no longer subject to reconsideration, appeal or
review in accordance with the Act and the Commission's
Rules.
14. TACO TIME agrees to implement a comprehensive
Compliance Program to ensure continued compliance with
the Communications Act and the Commission's Rules and
policies. The Compliance Program shall require that TACO
TIME's license for operation of a radio transmitter in
the Private Mobile Radio Service (``PMRS'') shall be kept
current and maintained in good standing for the duration
of TACO TIME's use of PMRS frequencies in the course of
its business operations. In an effort to ensure that
such violations do not recur, TACO TIME will further
designate one TACO TIME employee as the point of contact
for all matters related to the license, and will notify
the Commission of this assignment.
15. TACO TIME and the Bureau acknowledge and agree that
this Consent Decree shall constitute a final settlement
between them.
16. In express reliance upon the covenants and
representations contained herein, the Bureau agrees to
terminate the Enforcement Proceeding at such time as the
Bureau adopts this Consent Decree.
17. TACO TIME waives any and all rights it may have to seek
administrative or judicial reconsideration, review,
appeal or stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Order adopting
this Consent Decree, provided the Order adopts the
Consent Decree without modification.
18. In the event that TACO TIME is found by the Commission
or its delegated authority to have engaged in conduct the
same or similar to that described in paragraph 2 of this
Consent Decree, TACO TIME and the Bureau agree that the
apparent misconduct described in paragraph 2 may be used
by the Bureau only to fashion an appropriate sanction,
provided that TACO TIME shall not be precluded or
estopped from litigating de novo any and all of the
issues arising from the facts and allegations presented
in the NAL as necessary to defend, in any forum, its
interest from challenge by any person or entity not a
party to this Consent Decree.
19. TACO TIME and the Bureau agree that the effectiveness
of this Consent Decree is expressly contingent upon
issuance of the Order, provided the Order adopts the
Consent Decree without modification.
20. TACO TIME and the Bureau agree that, in the event any
court of competent jurisdiction renders this Consent
Decree invalid, the Consent Decree shall become null and
void and may not be used in any manner in any legal
proceeding.
21. TACO TIME and the Bureau agree that, if the Commission,
or the United States on behalf of the Commission, brings
a judicial action to enforce the terms of the Order
adopting this Consent Decree, neither TACO TIME nor the
Commission will contest the validity of the Consent
Decree or Order, and TACO TIME will waive any statutory
right to a trial de novo with respect to the matter upon
which the Order is based, and shall consent to a judgment
incorporating the terms of this Consent Decree.
22. TACO TIME agrees to waive any claims it may otherwise
have under the Equal Access to Justice Act, 5 U.S.C. §
504 and 47 C.F.R. §§ 1.1501 et seq.
23. TACO TIME agrees that any violation of the Consent
Decree or the Order adopting this Consent Decree will
constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission
order. 24. Any provision of this Consent Decree affected by or
inconsistent with any subsequent rule or order adopted by
the Commission will be superseded by such Commission rule
or order.
25. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
ENFORCEMENT BUREAU
By: __________________________ ____________
David H. Solomon Date
Chief, Enforcement Bureau
TACO TIME RESTAURANT
By: ______________________ ___________
Leland Staley Date
TACO TIME
_________________________
1 Notice of Apparent Liability for Forfeiture, NAL
Acct. No. 815DV0002 (Compl. & Inf. Bur., Denver Office,
released June 19, 1998).
2 47 U.S.C. § 301.
3 Taco Time, 14 FCC Rcd 2904 (Compl. & Inf. Bur. 1999).
4 Taco Time, 15 FCC Rcd 1319 (Enf. Bur. 1999).