**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+----------------------------------+
| In the Matter of                | ) | File No. EB-05-IH-2737           |
|                                 |   |                                  |
| **Spectracom, LLC**             | ) | NAL Account No. 200732080004     |
|                                 |   |                                  |
| Applicant for Assignment of     | ) | FRN No. 0003730710               |
| Private Land Mobile Stations    |   |                                  |
| WNFD452, WNHG245 and WNHU507    | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
+---------------------------------+---+----------------------------------+

##  {#section .unnumbered}

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

## Adopted: November 13, 2006 Released: November 13, 2006 {#adopted-november-13-2006-released-november-13-2006 .unnumbered}

By the Chief, Investigations and Hearings Division, Enforcement Bureau:

# INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* (\"*NAL*\"),
    we find that Spectracom, LLC ("Spectracom"), applicant for
    assignment of Private Land Mobile stations WNFD452, WNHG245, and
    WNHU507 (the "Stations"), apparently willfully violated Section
    1.948 of the Commission\'s rules[^1] by taking control of the
    Stations and operating those Stations without prior FCC notification
    and approval. Specifically, Spectracom took control of the Stations
    in June 2005, but failed to file an assignment application until
    November 14, 2005.[^2] We conclude, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended (\"Act\"),[^3] that
    Spectracom is apparently liable for forfeiture in the amount of
    twelve thousand dollars (\$12,000).

# BACKGROUND

2.  In June 2005, Spectracom purchased the Stations from Robert Crow,
    DBA Valley Comm. of Monte Vista, Co. ("Valley Comm").[^4] On
    November 14, 2005, Spectracom filed the Application for Commission
    consent to the assignment of the licenses from Valley Comm to
    Spectracom.[^5] Spectracom reported in the Application that the
    assignment had already occurred.[^6] In response to a telephone
    inquiry from the Wireless Telecommunications Bureau licensing staff
    regarding the answer to Question 7 in the Application, Spectracom
    responded on November 23, 2005, and explained that it had purchased
    the community repeaters from Valley Comm in June, 2005.[^7]
    Spectracom further asserted, in its response, that it began
    operating the systems on the date of purchase and continued until
    the date of the response on November 23, 2005.[^8]

3.  On November 23, 2005, the Commission sent a letter to Spectracom
    indicating that the assignment in question was apparently
    consummated prior to Commission approval.[^9] In the same letter,
    the Commission consented to the assignment of licenses without
    prejudice to subsequent enforcement action.[^10] Spectracom did not
    file a notification of consummation following the consent to
    assignment as required by Section 1.948(d), and therefore is not the
    licensee of record for the Stations.[^11]

# DISCUSSION

4.  Section 1.948 of the Commission's rules requires that
    "Authorizations in the Wireless Radio Services may be assigned by
    the licensee to another party, voluntarily or involuntarily,
    directly or indirectly, or the control of a license holding such
    authorizations may be transferred, only upon application to and
    approval by the Commission."[^12] Thus, under Section 1.948 of the
    Commission's rules, a licensee in the Wireless Radio Services
    involved in an assignment of authorization must apply to and receive
    authorization from the Commission regarding the terms of such
    transfer before the transfer is consummated.[^13] In the instant
    case, the record shows that Spectracom purchased three licenses for
    the Stations from Valley Comm in June 2005 and immediately began
    operating the systems without prior FCC approval.[^14] Therefore,
    these assignments were in violation of Section 1.948 of the
    Commission's rules.

5.  Section 503(b) of the Act provides that any person who willfully
    fails to comply substantially with the terms and conditions of any
    license, or willfully fails to comply with any of the provisions of
    the Act or of any rule, regulation or order issued by the Commission
    thereunder, shall be liable for a forfeiture penalty.[^15] The term
    \"willful\" as used in Section 503(b) has been interpreted to mean
    simply that the acts or omissions are committed knowingly.[^16]
    Based on the evidence before us, we find that Spectracom, LLC
    apparently willfully violated Section 1.948 of the Commission's
    Rules by failing to notify and receive approval from the Commission
    for the assignment of three licenses prior to consummation of the
    transaction.

6.  Pursuant to Section 1.80 of the Rules, the base forfeiture amount
    for engaging in an unauthorized transfer of substantial control of a
    licensee is \$8,000.[^17] Section 1.80(b)(4) of the Commission's
    rules also specifies that, in determining the amount of a forfeiture
    penalty, the Commission or its designee will take into account \"the
    nature, circumstances, extent, and gravity of the violations and,
    with respect to the violator, the degree of culpability, any history
    of prior offenses, ability to pay, and such other matters as justice
    may require.\"[^18] If we multiply this amount by the number of
    licenses at issue, we would find Spectracom apparently liable for a
    forfeiture of \$24,000.[^19] In the instant case, the assignment of
    the licenses resulted from a single transaction. We note that, in an
    analogous situation, the Commission held that multiplying this base
    forfeiture amount by the number of licenses at issue would result in
    an excessive forfeiture, and that the number of licenses involved
    should be considered an aggravating factor.[^20] Considering the
    circumstances of this case, the nature of the licenses at issue, the
    relatively brief period of operation (approximately five (5) months)
    prior to filing the Application, the relatively few authorizations
    at issue, and our precedent, we find that a reduction in the total
    forfeiture amount is appropriate. Applying the factors set forth in
    Section 1.80 and Section 503(b)(2)(D) of the Act to the instant
    case, we conclude that Spectracom is apparently liable for a
    \$12,000 forfeiture.

# ORDERING CLAUSES

7.  **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, and 1.80 of the Commission\'s Rules, Spectracom, LLC is
    hereby **NOTIFIED** of its **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of \$12,000 for willfully violating Section 1.948 of
    the Rules.[^21]

8.  **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s rules, within 30 days of the release date of this
    *Notice of Apparent Liability for Forfeiture*, Spectracom, LLC
    **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 must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL Acct. No. and FRN No.
    referenced in the caption.  Payment by check or money order may be
    mailed to Federal Communications Commission, P.O.
    Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail
    may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
    1540670, Pittsburgh, PA 15251.   Payment by wire transfer may be
    made to ABA Number 043000261, receiving bank Mellon Bank, and
    account number 911-6106.

10. **IT IS FURTHER ORDERED** that the response, if any, shall be mailed
    to Hillary S. DeNigro, Acting Chief, Investigation and Hearings
    Division, Enforcement Bureau, Federal Communications Commission, 445
    12^th^ Street, S.W., Suite 4-C330, Washington, D.C. 20554, and must
    include the NAL/Acct. No. referenced in the caption.

11. **IT IS FURTHER ORDERED** that the Commission shall not consider
    reducing or canceling a forfeiture in response to a claim of
    inability to pay unless the respondent 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 respondent'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 *NAL* under an
    installment plan should be sent to: Associate Managing Director \--
    Financial Operations, Federal Communications Commission, 445 12th
    Street, S.W., Room 1-A625, Washington, DC 20554.[^22]

13. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Spectracom, LLC at its
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

Hillary S. DeNigro

Acting Chief, Investigations and Hearings Division

Enforcement Bureau

[^1]: *See* 47 C.F.R. § 1.948.

[^2]: *See* FCC Wireless Telecommunications Bureau Application for
    Assignments of Authorization and Transfers of Control, File No.
    0002379825, at 1 ("Application").

[^3]: *See* 47 U.S.C. § 503(b).

[^4]: *See* Letter from Paul McCarty, Spectracom, LLC, to Sharon Weigle,
    Public Safety and Critical Infrastructure Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, dated
    November 23, 2005 ("McCarty Letter").

[^5]: *See id.* at 1.

[^6]: *See* Application at 1, Question 7.

[^7]: *See* McCarty Letter at 1.

[^8]: *See id.*

[^9]: *See* Letter from Tracy Simmons, Associate Chief, Licensing
    Operations, Public Safety and Critical Infrastructure Division,
    Federal Communications Commission, to Spectracom, LLC, Attn. Paul
    Michael McCarty, dated November 23, 2005.

[^10]: *See id.*

[^11]: *See* 47 C.F.R. § 1.948(d).

[^12]: *See* 47 C.F.R. § 1.948(a).

[^13]: *See id.*

[^14]: *See* McCarty Letter at 1.

[^15]: *See* 47 U.S.C. § 503(b).

[^16]: Section 312(f)(1) of the Act, which applies to violations for
    which forfeitures are assessed under Section 503(b) of the Act,
    provides that \"\[t\]he 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 . . . .\" 47
    U.S.C. § 312(f)(1). *See Southern California Broadcasting Co.*, 6
    FCC Rcd 4387 (1991).

[^17]: *See* 47 C.F.R. §1.80 (2005).

[^18]: 47 C.F.R. § 1.80(b)(4). This rule implements Section 503(b)(2)(D)
    of the Act, which requires that these factors be considered by the
    Commission or its designee when assessing forfeitures. *See* 47
    U.S.C. § 503(b)(2)(D).

[^19]: *See* 47 C.F.R. § 1.80.

[^20]: *See Roadrunner Transportation, Inc*., Forfeiture Order, 15 FCC
    Rcd 9669, 9672 (2000) (considering voluntary disclosure, duration of
    period of unauthorized operation prior to filing corrective
    applications, and the number of licenses involved to be important
    factors in determining the forfeiture amount to be \$40,000 for the
    unauthorized substantial transfer of control of 17 licenses).

[^21]: *See* 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    1.948.

[^22]: *See* 47 C.F.R. § 1.1914.