**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

> )

420 Energy Investments, Inc. ) File No. EB-00-CF-386

WPFQ228 )

Burnsville, WV )

and ) NAL/Acct. No. 200132340001

WPFP282 )

Sardis, WV )

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released:** January 3, 2001

By the District Director, Columbia Office, Enforcement Bureau:

# I. Introduction

1.  In this Notice of Apparent Liability for Forfeiture (NAL), we find
    that 420 Energy Investments, Inc. ("420 Energy") has apparently
    violated Section 1.903(a) of the Commission\'s Rules and Regulations
    (the "Rules\")[^1] by failing to operate stations WPFQ228,
    Burnsville, West Virginia and WPFP282, Sardis, West Virginia in
    accordance with the terms of the station licenses. We conclude that
    420 Energy is apparently liable for a forfeiture in the amount of
    \$6,000 for each of the two stations in violation, resulting in a
    total proposed forfeiture amount of twelve thousand dollars
    (\$12,000).

## II. Background

2.  Station WPFQ228, licensed to 420 Energy and located at Burnsville,
    WV, was inspected on July 11, 2000 by agents from the Commission's
    Columbia, Maryland Field Office. During that inspection, the agents
    discovered that the station was transmitting on 856.3375 MHz, a
    frequency not authorized for use at that station. They also noted
    that several authorized frequencies were not installed.

3.  As a result of violations noted at WPFQ228, the agents requested to
    inspect station WPFP282 at Sardis, WV. Inspection of station WPFP282
    revealed that the station was transmitting on 855.9625 MHz, a
    frequency not authorized for use at that station. Equipment was
    installed to permit operation on 855.7125 MHz and 854.9625 MHz,
    frequencies not authorized for use at station WPFP282. They also
    noted that several authorized frequencies were not installed.

4.  The Columbia office issued a Notice of Violation to 420 Energy for
    station WPFQ228 and station WPFP282 on July 25, 2000 detailing these
    violations. In a reply dated September 11, 2000, 420 Energy stated
    that it began "swapping" frequencies between the two stations in
    late 1999 and submitted applications on February 2, 2000 to cover
    the new frequency usage. Those applications were returned on May 17,
    2000 and the application for WPFP282 was resubmitted on July
    17, 2000. The reply stated that on July 20, 2000 the Commission
    cancelled the license for station WPFQ228. 420 Energy acknowledged
    that they operated on frequencies not authorized for the facilities
    and that they should have obtained Special Temporary Authority
    "prior to initiating any operations not in conformance with the
    specifications reflected on its outstanding authorization." On
    October 6, 2000 a Notice of Violation (Continuation) was issued for
    each station. Those Continuations asked 420 Energy to confirm that
    station WPFQ228 and station WPFP282 had ceased operation on the
    unauthorized frequencies. And if such operation had not ceased, to
    confirm by what authority the stations were continuing to operate.
    420 Energy stated in their response dated October 18, 2000 that the
    operation had not ceased, pending grant of Special temporary
    Authority requested on October 12, 2000.

### III. Discussion

5.  Section 1.903(a) requires that stations in the Wireless Radio
    Services must be operated in accordance with applicable rules and
    with a valid authorization granted by the Commission. The licensee
    acknowledged in his reply dated September 11, 2000 that he should
    have obtained Commission authority prior to beginning operation in
    late 1999 on frequencies not authorized at the two stations. In a
    reply dated, October 18, 2000, the licensee acknowledged that the
    unauthorized operation had continued pending receipt of Commission
    authorization. Based on the replies, the Licensee did not apply for
    Special Temporary Authority to operate the stations, as constructed,
    until October 12, 2000. The requested Special Temporary Authority
    was granted on October 31, 2000. It is clear that 420 Energy was
    aware for some time that it was operating in violation of Section
    1.903(a) and consciously chose to continue to operate in violation.

6.  Based on the evidence before us, we find that 420 Energy
    Investments, Inc. operated in willful[^2] and repeated[^3] violation
    of Section 1.903(a) of the Rules. The Commission's *Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture* Guidelines, 12 FCC Rcd 17087, 17113
    (1997), *recon. denied*, 15 FCC Rcd 303(1999) ("Policy Statement"),
    sets the base amount for use of an unauthorized frequency at four
    thousand dollars (\$4,000) per violation. In assessing the monetary
    forfeiture amount, we must also take into account the statutory
    factors set forth in Section 503(b)(2)(D) of the Communications Act
    of 1934 ("Act")[^4], as amended, that include 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. Applying the Policy Statement and statutory factors to
    the instant case, we believe that a monetary forfeiture in the
    amount of six thousand dollars (\$6,000) per station in violaton for
    a total of twelve thousand dollars (\$12,000) is warranted. This
    amount reflects an increase above the base amount due to the
    conscious, continuing violation at both the Burnsville and Sardis
    stations.

##### IV. ORDERING CLAUSES

7.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^5] and Sections 0.111, 0.311 and 1.80 of the Rules[^6], 420
    Energy Investments, Inc. is hereby NOTIFIED of its APPARENT
    LIABILITY FOR A FORFEITURE in the amount of twelve thousand dollars
    (\$12,000) for willfully and repeatedly violating Section 1.903(a)
    of the Rules.

8.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty (30) days of the date of release of this NOTICE OF
    APPARENT LIABILITY, 420 Energy Investments, Inc. SHALL PAY the full
    amount of the proposed forfeiture or SHALL FILE a written statement
    seeking reduction or cancellation of the proposed forfeiture.

9.  Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. 200132340001.

10. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST
    INCLUDE THE NAL/Acct. No. 200132340001.

11. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

12. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief, Credit
    and Debt Management Center, 445 12th Street, S.W., Washington, D.C.
    20554.[^7]

13. IT IS FURTHER ORDERED THAT this notice shall be sent, by certified
    mail, return receipt requested, to 420 Energy Investments, Inc., c/o
    Wayne V. Black, Keller and Heckman LLP, 1001 G Street, N.W., Suite
    500 West, Washington, DC 20001.

FEDERAL COMMUNICATIONS COMMISSION

Charles C. Magin

District Director, Columbia Office

[^1]: 47 C.F.R. § 1.903(a).

[^2]: Section 312(f)(1), which also applies to Section 503(b), provides:
    "the term 'willful', when used with reference to the commission or
    omission of any act, means the conscious and deliberate commission
    or omission of such act, irrespective of any intent to violate any
    provision of this Act or any rule or regulation of the Commission,
    authorized by this Act or by a treaty ratified by the United
    States." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387(1991).

[^3]: Section 312(f)(2), which also applies to Section 503(b), provides:
    \[t\]he term "repeated", when used with reference to the commission
    or omission of any act, means the commission or omission of such act
    more than once or, if such commission or omission is continuous, for
    more than one day.

[^4]: 47 U.S.C. § 503(b)(2)(D).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. §§ 0.111, 0.311, and 1.80.

[^7]: See 47 C.F.R. § 1.1914.