Click here for Microsoft Word Version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
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
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
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 )
MEMORANDUM OPINION AND ORDER
Adopted: November 22, 2000 Released: November 28,
2000
By the Commission:
1. In this Order, we deny the April 24, 2000,
application for review filed by Colorado Small Business
Development Association, Inc. (``CSBDA'') and Westall
Communications, d/b/a/ M.T.W. (``Westall'') of the Forfeiture
Order1 in this proceeding. Pursuant to Section 503(b) of the
Communications Act of 1934, as amended (``the Act''), 47 U.S.C.
§ 503(b), and Section 1.80 of the Commission's Rules (``the
Rules''), 47 C.F.R. § 1.80, the Enforcement Bureau found CSBDA
liable for a monetary forfeiture in the amount of $10,000 and
Westall liable for a monetary forfeiture in the amount of $12,000
for unauthorized construction and operation of business radio
transmitters in the greater Denver, Colorado area, in willful
violation of Section 301 of the Act,2 and former Section 90.113
of the Commission's Rules.3 For the reasons discussed below, we
deny the application and affirm the forfeitures.
BACKGROUND
2. On September 22, 1999, the FCC's Denver, Colorado Field
Office issued Notices of Apparent Liability for Forfeiture
(``NALs'') to CSDBA and Westall in the amounts of ten thousand
dollars ($10,000) and twelve thousand dollars ($12,000),
respectively,4 for unauthorized construction and operation of
radio transmitters on frequencies 937.1500 MHz, 937.6500 MHz and
937.7375 MHz in the greater Denver, Colorado area. The NALs were
prepared after an interview with a principal of both Westall and
CSBDA, and inspections of the sites by FCC agents on September
23, 1998 and September 24, 1998. 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.
3. CSDBA and Westall filed a consolidated response to both
NALs on October 22, 1999, which argued 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. Despite the release date of September 22, 1999
clearly marked on both NALs, Westall and CSBDA argued that the
NALs failure to appear on the Commission's Daily Digests for
either September 22 or 23, 1999 indicated that neither NAL had
actually been released. CSBDA and Westall further contended 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.''
4. The Forfeiture Order rejected these arguments, noting
that the Denver Field Office originally sent the NALs to CSBDA
and Westall on September 22, 1999, by Certified Mail, Return
Receipt Requested, but CSBDA and Westall refused to accept
delivery of them. 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. The Bureau
concluded, ``[h]aving 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).''5
5. In the application for review, CSBDA and Westall
reiterate the arguments previously rejected by the Enforcement
Bureau in the Forfeiture Order, and allege that ``[t]here is
absolutely no evidence whatsoever for [the Bureau's] contention
that CSBDA and Westall refused to accept delivery of official
Commission correspondence, and the licensees categorically deny
that they refused such delivery.'' The application for review
contends that the address to which the NALs were sent is the
business address for both licensees as well as the residence of
Mr. Westall, the principal of CSBDA and the owner of Westall.
The application for review further asserts: ``As such, the only
persons who could have refused acceptance of the alleged attempt
to served [sic] the notices on September 22, 1999 would have been
wither [sic] Westall or his spouse. Each expressly denies ever
having refused an attempted deliver [sic] from the Commission.''
DISCUSSION
6. Despite the express denials of Mr. and Mrs. Westall
referenced in the application for review, the certified mail
envelopes returned to the Commission's Denver office by the U.S.
Postal Service are clearly marked ``refused.''6 Consequently, we
find that Westall and CSBDA, who are both Commission licensees,
did refuse to take delivery of the NALs, and we concur with the
Bureau that Westall and CSBDA cannot now claim that the NALs were
not issued in a timely fashion. See 47 C.F.R. § 1.5(b) (``The
licensee is responsible for making any arrangements which may be
necessary in his particular circumstances to assure that
Commission documents ... delivered to ... [his] address will
promptly reach him or some person authorized by him to act in his
behalf.''); see also U.S. v. Bolton, 781 F.2d 528, 532 (6th Cir.
1985), cert. denied sub nom. Bolton v. United States, 476 U.S.
1158 (1986) (``It is reasonable to assume that if persons refuse
to accept delivery or collect their mail, the mail has in fact
reached them.''); Hoffman v. National Equipment Rental, Ltd., 643
F.2d 987, 990 (4th Cir. 1981) (A notice sent by certified mail
was deemed to be served although the postal service returned
certified mail notice as ``refused.'').
7. The application for review also contends that, even had
the original certified mailing of the NALs not been refused, the
documents could not have been physically delivered to Westall and
CSBDA prior to the expiration of the statute of limitations, and
would thus still have been invalid. However, the statute does not
require that the NAL be received within one year of the
violation, but that the NAL must be issued within one year of the
violation. 47 U.S.C. § 503(b)(6)(B). Where, as here, the NAL is
issued by a Commission Field Office, it is not published in the
Federal Register; it is not released by making the full text
available to the press and the public at Commission headquarters,
and it does not appear on a Commission Public Notice or in the
Daily Digest. In such a case, the date of issuance is the date
that appears on the NAL. See 47 C.F.R. § 1.4(b)(5) (in such
circumstances, date of "public notice" for computation of time
purposes is the date that appears on the item). Thus, the NALs,
which were issued on September 22, 1999, complied with the
statute of limitations even if received by the licensees after
that date.
ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.115(c) of the Rules, 47 C.F.R. § 1.115(c), the application for
review of the Forfeiture Order for NAL Nos. 915DV0008 and
915DV0009 IS DENIED.
9. Payment of the forfeitures shall be made in the manner
provided for in Section 1.80 of the Commission's Rules7 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.8 Payment may be made 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.
20554.9
10. IT IS FURTHER ORDERED that a copy of this Memorandum
Opinion and Order shall be sent by Certified Mail Return -
Receipt Requested to Robert J. Keller, Esquire, at Law Offices of
Robert J. Keller, P.C., P.O. Box 33428 - Farragut Station,
Washington, D.C. 20033-0428.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 15 FCC Rcd 5811 (Enf. Bur. 2000).
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 Nos. 915DV0008 and 915DV0009 (FCC Denver Field Office,
both released September 22, 1999).
5 15 FCC Rcd at 5812-5813.
6 Copies of the returned certified mail envelopes are a part
of the case file in this matter and are available for review at
the Commission.
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.