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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
ROADRUNNER TRANSPORTATION, INC. )
)
Licensee of Land Mobile Radio )
Stations WPHA757 (Golden, CO); WPEM630 )
(Minneapolis, MN); WPHK945 (Dallas, TX); )
WPJH296 (Minneapolis, MN); WPJH286 )
(Minneapolis, MN); WPHZ532 (New York, NY); ) NAL/Acct. No. 920EF0034
WPLQ863 (Kansas City, MO); )
WQP225 (Minneapolis, MN); KGS652 )
(St. Paul, MN); WNZB829 (Minneapolis, MN); and )
WNBU955 (Minneapolis, MN). )
)
DYNAMEX OPERATIONS EAST, INC. )
)
Licensee of Land Mobile Radio )
Stations KNAR463 (Columbus, OH); ) File No. 920EF0035
WBU639 (Chicago, IL); WNMO605 (Chicago, IL); )
WZU391 (Columbus, OH); and KRJ449 (Chicago, IL). )
)
CITY COURIER, INC. )
)
Licensee of Business Radio Service Station WPIF201 ) File No. 920EF0036
(New York, NY) )
)
EASTSIDE/WESTSIDE, INC. )
)
Licensee of Industrial/Land Transportation Radio ) File No. 920EF0037
Service Station WNUD737 (Minneapolis, MN) )
FORFEITURE ORDER
Adopted: May 31, 2000 Released: June 5, 2000
By the Commission:
I. Introduction
1. In this order, we grant, in part, the "Request for Cancellation or Reduction of Proposed
Forfeiture" filed jointly on July 6, 1999 by Roadrunner Transportation, Inc. (Roadrunner), Dynamex
Operations East, Inc. (DOE), City Courier, Inc. (City Courier) and Eastside/Westside, Inc.
(Eastside/Westside) (collectively, "Licensees"), licensees of the above-captioned Private Land Mobile Radio
Service (PMRS) stations. We conclude that the Licensees transferred or acquired control of the above-
captioned stations without obtaining the requisite authority from the Commission, in apparent willful and
repeated violation of Section 310(d) of the Communications Act of 1934, as amended, 47 U.S.C. 310(d),
and former Section 90.153 of the Commission's rules, 47 C.F.R. 90.153. While we reject the Licensees'
arguments that no forfeiture should be imposed, we believe that reductions in the forfeitures imposed against
Roadrunner and DOE are warranted. Accordingly, we find the Licensees liable for forfeitures in the following
amounts: Roadrunner, $22,000; DOE, $10,000; City Courier, $4,000; and Eastside/Westside, $4,000.
II. Background
2. Dynamex, Inc. (Dynamex) and DOE operate courier services in various locations throughout the
United States. Roadrunner, DOE, City Courier, and Eastside/Westside are subsidiaries of Dynamex. On
March 27, 1998, and March 30, 1998, Dynamex and DOE, respectively, filed requests for Special Temporary
Authority (STA) to operate the 18 captioned PMRS stations. In the transmittal letters that accompanied their
requests for STAs, which were nearly identical, Dynamex and DOE revealed to the Commission that since 1996,
they had acquired control of the referenced stations without having obtained prior Commission approval.
3. The two companies indicated that the unauthorized transactions had taken the form of stock or asset
acquisitions by Dynamex, with subsequent merger into DOE; or stock acquisitions by Dynamex, whereby the
acquired entity became a subsidiary of Dynamex. According to the information provided in the STA requests,
Dynamex concedes that, since 1996, without prior Commission approval, it acquired the stock of Roadrunner,
doing business under the names Am Express, Inc., (for Stations WPHA757, WPEM630 and WPHK945);
Desert Bird (for Stations WPJH296 and WPJH286); Sky & Highway (for Station WNZB829); Twin City
Express (for Station WNBU955), and in its own name (for Stations WNUD737, WPLQ863, WQP225, and
KGS652). Dynamex also admits that it acquired the stock of City Courier and Eastside/Westside without
Commission approval. All of these companies became wholly owned subsidiaries of Dynamex. Similarly,
DOE concedes that, since 1996, without prior Commission consent, it acquired the assets of: Drayage
Services, former licensee of Station KNAR463; Metro Messenger Service, Inc., former licensee of Stations
WBU639 and WNMO605; Seidel Enterprises, Inc., former licensee of Station WZU391; and Seko
Enterprises, former licensee of Station KRJ449.
4. In support of their requests for STAs, the companies represented that their failures to obtain prior
Commission approval of the transactions were inadvertent. According to Dynamex and DOE, "[t]his error was due,
in part, to the rapid expansion of the business and the number of entities involved. Even more regrettably, although
Dynamex . . . had experienced a similar situation two years ago . . . [its] licensing procedures were not effectively
communicated to the pertinent employees involved in the subject acquisitions." Dynamex and DOE stated in their
respective STA requests that, to ensure future compliance, they had requested their counsel to develop clear and
concise guidelines regarding radio license acquisitions, which they intended to distribute to all employees involved
in future acquisitions.
5. In addition to seeking STAs for each of the stations, which were granted on July 22, 1998, Dynamex
and DOE, on April 3, 1998, filed applications for consent to transfer control of or to assign the licenses in question.
Those applications were granted between September 29, 1998 and October 7, 1998.
6. On June 4, 1999, the Commission found the Licensees apparently liable for forfeitures in the following
amounts: Roadrunner ($44,000), DOE ($20,000), City Courier ($4,000), and Eastside/Westside ($4,000).
Roadrunner Transportation, Inc., 14 FCC Rcd 9311 (1999) ("NAL"). The Licensees jointly filed their response
to the NAL on July 6, 1999.
III. Discussion
7. In their response, the Licensees do not deny that they violated Section 310(d) of the Act and former
Section 90.153 of the Commission's rules by acquiring control of the above-referenced station without obtaining
Commission approval. They argue, however, that the NAL improperly imposed a forfeiture for conduct occurring
more than one year from the date of the NAL, in violation of Section 503(b)(6) of the Act, 47 U.S.C. 503(b)(6).
The Licensees also argue that the proposed forfeitures are excessive in light of the noncommercial status of the
facilities and the fact that the stations were incidental to the transaction in question.
8. We reject the Licensees' first argument because it misconstrues the NAL. The Licensees are correct
that the Commission may not issue a forfeiture against a wireless licensee for a violation that occurred more than one
year prior to the issuance of the notice of apparent liability. See 47 U.S.C. 503(b)(6)(B). In this case, the
Licensees were found to be apparently liable for a forfeiture for the period from June 1, 1998 (one year prior to
adoption of the NAL) until, at the earliest, September 29, 1998, when the Commission first granted its consent to the
transfer of control of some of the stations at issue. While the Commission may not, in this case, find the Licensees
liable for violations committed prior to June 1, 1998, it may lawfully look at facts arising before that date in
determining an appropriate forfeiture amount. In Eastern Broadcasting Corp., 10 FCC 2d 37 (1967), the
Commission held that it could consider acts of a station manager that occurred outside the statute of limitations in
determining the appropriate forfeiture for acts that occurred inside the statute of limitations. The Commission held
that it could consider matters occurring outside the statute of limitations period in determining a licensee's "degree
of culpability." Similarly, in Cate Communications Corporation, 60 RR 2d 1386 (1986), the Commission
considered facts prior to the statute of limitations period in considering the appropriate forfeiture amount for a
continuing transfer of control. The Commission held that such facts placed "the violations in context, thus
establishing the licensee's degree of culpability and the continuing nature of the violations." Similarly, in this case,
we used the fact that the violations began in 1996 to establish the context for determining an appropriate forfeiture
amount for the violations that were subject to a forfeiture from June 1, 1998 forward. Accordingly, the Licensees'
argument that the NAL violated the statute of limitations must be rejected.
9. With respect to the Licensees' second argument, the Licensees point to the noncommercial status of the
facilities and the fact that they voluntarily disclosed their violations as mitigating factors. While we agree with the
Licensees that those factors support mitigation of the forfeiture, the Commission considered them in determining the
appropriate amount of the forfeiture in the NAL. See NAL, 14 FCC Rcd at 9315 8. Moreover, as noted in the
NAL, there are several aggravating factors that support an increased forfeiture amount, including the duration of the
violations, the admitted prior violation, and the fact that the Licensees engaged in multiple transfers involving a
number of stations.
10. Nonetheless, we believe a reevaluation of the forfeiture amount is appropriate. The forfeiture amounts
in the NAL were calculated by multiplying $4,000 times the number of stations at issue for each company. After the
NAL in this case was issued, we considered Central Illinois Public Service Company, 15 FCC Rcd 1750, 1753
(1999), and declined to engage in a strict mathematical exercise of multiplying a base forfeiture amount for a
violation times the number of stations involved because doing so "would result in an excessive forfeiture amount and
would be inconsistent with prior enforcement actions." Instead, we determined that the number of stations involved
should be treated as an aggravating factor warranting an increased forfeiture. We believe the forfeiture amounts in
the instant case should be recalculated using this approach.
11. In Central Illinois, we imposed a $30,000 forfeiture for an unauthorized substantial transfer of control
of 88 private land mobile and microwave stations. The transfer took place in one transaction, and approximately
three and a half-months passed between the transfer and the time the Commission was notified. In both cases, the
violations were voluntarily disclosed to the Commission. This case involves substantially fewer stations than
Central Illinois. On the other hand, the violations in this case took place over a substantially longer period of time
(two years passed before the Commission was informed of the transfers of control), they involved multiple
transactions, and the Licensees admit that Dynamex engaged in a prior violation of the same rule. On balance, we
believe that a slightly higher total forfeiture than we imposed in Central Illinois is warranted.
12. The Licensees also argue that the forfeiture proposed in the NAL is inconsistent with the $20,000
forfeiture imposed in Puget Sound Energy, Inc., 14 FCC Rcd 9111 (WTB 1999). Puget Sound involved a
substantial transfer of control of 125 stations that lasted almost two months before the licensee voluntarily notified
the Commission of the violation. As with Central Illinois, there are fewer stations involved, but we believe the
longer duration of the violations, the existence of multiple substantial transfer of control transactions, and the
admission of the prior violation outweigh the fact that fewer stations are involved in this case. In light of all the
circumstances of this case, we believe a total forfeiture of $40,000 is appropriate and consistent with the Central
Illinois and Puget Sound cases. We allocate the forfeitures as follows: $22,000 to Roadrunner, $10,000 to DOE,
and $4,000 each to City Courier and Eastside/Westside.
IV. Ordering Clauses
13. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Act, 47 U.S.C.
503(b), and Section 1.80(f)(4) of the Commission's rules, 47 C.F.R. 1.80(f)(4), Roadrunner Transportation,
Inc., Dynamex Operations East, Inc., City Courier, Inc., and Eastside/Westside, Inc. ARE LIABLE FOR
MONETARY FORFEITURES in the amounts of $22,000, $10,000, $4,000, and $4,000, respectively, for
their willful and repeated violations of Section 310(d) of the Communications Act of 1934, as amended, 47
U.S.C. 310(d), and former Section 90.153 of the Commission's rules, 47 C.F.R. 90.153.
14. Payment of the forfeitures shall be made in the manner provided for in Section 1.80 of the
Commission's 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, 47 U.S.C. 504(a). 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. Nos. 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. See 47 C.F.R. 1.1914.
15. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by Certified Mail/Return
Receipt Requested, to counsel for the Licensees, Pamela Geary, Esq., Lukas, McGowan, Nace & Gutierrez,
Chartered, 1111 19th Street, N.W., Suite 1200, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary