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If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Colorado Small Business Development Assoc., Inc. ) EB-00-TS- 011 Trunked Business Station WPHX776 ) NAL/Acct. No.: 915DV0008 Denver, Colorado ) ) Westall Communications d/b/a M.T.W. ) EB-00-TS- 012 Trunked Business Station WPHI656 ) NAL/Acct. No.: 915DV0009 Denver, Colorado ) FORFEITURE ORDER Adopted: March 22, 2000 Released: March 23, 2000 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order (``Order''), we issue a monetary forfeiture in the amount of ten thousand dollars ($10,000) against Colorado Small Business Development Association, Inc. (``CSBDA''), and a monetary forfeiture in the amount of twelve thousand dollars ($12,000) against Westall Communications, d/b/a/ M.T.W. (``Westall'')1 for willful and repeated violations of Section 301 of the Communications Act of 1934 (``Act''), as amended,2 and former Section 90.113 of the Commission's Rules. 3 The noted violations involve unauthorized construction and operation of business radio transmitters in the greater Denver, Colorado area. 2. On September 22, 1999, the District Director of the FCC's Denver, Colorado Field Office issued Notices of Apparent Liability (``NAL'') for Forfeiture to CSDBA and Westall in the amounts of ten thousand dollars ($10,000) and twelve thousand dollars ($12,000), respectively.4 CSDBA and Westall filed a consolidated response to both NALs on October 22, 1999. II. BACKGROUND 3. On September 23, 1998, FCC agents interviewed Michael T. Westall, who is the Registered Agent for and a Director of CSBDA and the owner of Westall Communications, regarding information and complaints of non-compliant operation and use of 800 and 900 MHz frequencies in the Denver area. During the interview, Mr. Westall admitted that he had placed radio transmitters in operation on Buckhorn Mountain, near Ft. Collins, Colorado, and Republic Plaza, in Denver, Colorado, that were not authorized for these locations. The agents inspected the Republic Plaza and Buckhorn Mountain sites on September 23, 1998 and September 24, 1998, respectively. The inspections confirmed the unauthorized construction and operation of radio transmitters on frequencies 937.1500 MHz and 937.6500 MHz at Republic Plaza, and on 937.7375 MHz at Buckhorn Mountain. Though Westall and CSBDA were licensed to operate on these frequencies, the authorized locations for the transmitters were, respectively, 20 and 45 miles away from their actual locations. 4. The consolidated response to the NALs does not address the substance of the violations noted in the NALs, but argues that the NALs were not issued within one year of the occurrence of the violations, as required by Section 503(b)(6)(B) of the Act, and should therefore be rescinded. CSBDA and Westall contend that, even though the NALs bear release dates of September 22, 1999, it does not appear that either NAL was actually released because the NALs do not appear on the Commission's Daily Digests for either September 22 or 23, 1999. CSBDA and Westall further contend that the NALs were sent to them in envelopes postmarked more than one year after the violations were found, and that the NALs ``can not be deemed `issued' on September 22, 1993 [sic] simply because the Bureau staff places that date on a document that it neither releases nor mails to the licensee until a week later.'' III. DISCUSSION 5. Section 503(b)(6)(B) of the Act provides that forfeitures may not be imposed against any person who is not a broadcast station licensee if the violation charged occurred more than 1 year prior to the date of issuance of the required notice or notice of apparent liability.5 The violations at issue here were found by Commission staff on September 23, 1998. Accordingly, the NALs had to be issued by September 23, 1999 to be timely. 6. The NALs were issued on September 22, 1999, as noted on the first page of each of the documents.6 Though the consolidated response contends that the NALs were postmarked several days after the one year period for issuance had run, the postmarks relied upon by Westall and CSBDA are for the second attempt to serve them with the NALs at issue. The Denver Field Office originally sent the NALs to CSBDA and Westall on September 22, 1999, by Certified Mail, Return Receipt Requested. The envelopes containing the NALs were returned to the Denver Field Office on September 27 and 28, 1999, because CSBDA and Westall refused to accept delivery. Both envelopes were clearly identified as official business communications from the Commission's Denver Field Office. When the certified letters came back after CSBDA and Westall refused delivery, the Denver Field Office made a second attempt to serve the NALs, this time by regular U.S. mail. The second attempt at service was successful, but the envelopes transmitting the NALs by regular mail were postmarked after the expiration of the statute of limitations. 7. We need not decide the issue of whether the postmark date has any bearing on the issuance date of the NALs for purposes of Section 503(b)(6)(B) of the Act. Having affirmatively refused service of the NALs that were issued and mailed to them prior to the expiration of the statute of limitations, CSBDA and Westall cannot now claim that the NALs fail because they were not issued within the timeframe established by 47 U.S.C. 503(b)(6)(B). IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules,8 Colorado Small Business Development Association, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount $10,000, and Westall Communications, d/b/a M.T.W. IS LIABLE FOR A MONETARY FORFEITURE in the amount $12,000, for violating the provisions of the Communications Act and the Commission's Rules requiring that radio transmitters be operated in accordance with a proper authorization granted by the Commission. See Section 301 of the Act, 47 U.S.C. § 301, and former Section 90.113 of the Commission's Rules, 47 C.F.R. 90.113. 9. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's Rules9 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.10 Payment may be made by credit card through the Commission's Credit and Debt Management Center at (202) 418-1995 or 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. Numbers referenced above. Requests for full payment under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12th Street, S.W., Washington, D.C. 20554.11 10. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by Certified Mail Return Receipt Requested to Robert J. Keller, Esquire, at Law Office of Robert J. Keller, P.C., 4200 Wisconsin Avenue N.W., PMB #106-233, Washington, D.C. 20016-2157. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 Although the subject Notices of Apparent Liability (``NALs'') were issued to separate companies, both companies are controlled by the same principal, Michael Westall. The violations at issue in each of the NALs arise under the same provisions of the Act and the Rules, and the two companies filed a single, consolidated response to both NALs. We therefore address the two forfeitures collectively in this Order. 2 47 U.S.C. § 301. 3 Effective February 12, 1999, Section 90.113 of the Commission's Rules was incorporated into Section 1.903(a) of the Rules, 47 C.F.R. § 1.903(a). Since Section 90.113 of the Rules was applicable at the time the violations were noted, that Section was referenced in the NALs. 4 NAL No. 915DV0008 and NAL No. 915DV0009 (FCC Denver Field Office, both released September 22, 1999). 5 47 U.S.C. § 503(b)(6)(B). 6 NALs issued by the Commission's Field Offices are generally not published in the Daily Digest. 7 47 U.S.C. § 503(b). 8 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4). 9 47 C.F.R. § 1.80. 10 47 U.S.C. § 504(a). 11 See 47 C.F.R. § 1.1914.