**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Falcon Radio, Inc. ) File No. EB-00-TS-002

Trunked Business Station )

Denver, CO ) NAL/Acct. No. 915DV0005

)

and )

)

Falcon Radio, Inc. ) File No. EB-00-TS-009

Trunked Business Station )

Denver, CO ) NAL/Acct. No. 915DV0006

## MEMORANDUM OPINION AND ORDER

## AND FORFEITURE ORDER 

**Adopted: July 30, 2001 Released: August 1, 2001**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Memorandum Opinion and Order and Forfeiture Order*
    ("*Order*"), we consolidate the above-captioned proceedings
    involving Falcon Radio, Inc. ("Falcon") because they raise
    overlapping issues. For the reasons that follow, we issue a monetary
    forfeiture in the amount of five thousand dollars (\$5,000) to
    Falcon for its unlicensed operation of a 900 MHz business radio
    system at Thorodin Mountain in Wondervu, Colorado, in willful and
    repeated violation of Section 301 of the Communications Act of 1934,
    as amended ("the Act").[^1] In addition, we rescind a monetary
    forfeiture in the amount of twenty thousand dollars (\$20,000)
    issued to Falcon for its unlicensed operation of a 900 MHz business
    radio system at Squaw Mountain in Idaho Springs, Colorado, in
    willful and repeated violation of Section 301 of the Act.

**II.** **BACKGROUND**

2.  In 1998, after receiving complaints and information regarding
    non-compliant operation and use of the 800 MHz and 900 MHz frequency
    bands in the Denver area, the FCC's Denver, Colorado Field Office
    ("Denver Office") initiated an investigation. As part of this
    investigation, on September 23, 1998, agents from the Denver Office
    inspected a trunked radio system located at Squaw Mountain in Idaho
    Springs, Colorado. The system was composed of five transmitters, all
    of which were in operation. Measurements taken by the agents
    indicated that the radio equipment was transmitting on frequencies
    939.3875 MHz, 939.4000 MHz, 939.4125 MHz, 939.4250 MHz, and 939.4375
    MHz. At the time of the inspection, the system was being managed and
    operated by Falcon, a subsidiary of High Voltage, Inc. ("High
    Voltage"). Jack Spillman, Falcon's service manager, told the agents
    that the five channels at the Squaw Mountain site were part of a ten
    channel station licensed to High Voltage at Squaw Mountain under the
    call sign WPIZ573. Mr. Spillman stated that High Voltage had
    received Special Temporary Authority ("STA") from the Commission to
    construct and operate the other five channels at Thorodin Mountain
    in Wondervu, Colorado.

3.  On September 28, 1998, agents from the Denver Office inspected the
    Thorodin Mountain site. The agents observed a trunked radio system
    composed of five transmitters, all of which were in operation.
    Measurements taken by the agents indicated that the radio equipment
    was transmitting on frequencies 939.4500 MHz, 939.4625 MHz, 939.4750
    MHz, 939.4875 MHz, and 939.5000 MHz. Mr. Spillman was also present
    at this inspection. He repeated that High Voltage had received STA
    from the Commission to construct and operate the five channels at
    the Thorodin Mountain site rather than at the authorized Squaw
    Mountain site and provided a copy of a request for extension of the
    STA as authorization for the operation at the Thorodin Mountain
    site.

4.  In reviewing Commission records, the Denver Office discovered that
    the Wireless Telecommunications Bureau ("Wireless Bureau") had
    deleted the license for Station WPIZ573 from its database on March
    24, 1998, based on a failure to construct Station WPIZ573 and to
    respond to an "800H letter," the third and final of three form
    letters routinely sent out by the Wireless Bureau to request the
    construction status of a particular station. Review of Commission
    records showed no other authorization for operation at the Squaw
    Mountain site. Moreover, while review of Commission records revealed
    that High Voltage had obtained STA to construct and operate five
    channels at the Thorodin Mountain site for a 180-day period from
    December 4, 1996, to June 4, 1997, there was no record of any
    extension of this STA or any other authorization for operation at
    the Thorodin Mountain site.

5.  Based on its finding that the license for Station WPIZ573 had been
    cancelled, on September 15, 1999, the Denver Office issued a *Notice
    of Apparent Liability for Forfeiture* ("*NAL*") in the amount of
    twenty thousand dollars (\$20,000) to Falcon for unlicensed
    operation of a 900 MHz business radio system at Squaw Mountain in
    Idaho Springs, Colorado ("*Squaw Mountain NAL*").[^2] On that same
    date, the Denver Office also issued an *NAL* in the amount of twenty
    thousand dollars (\$20,000) to Falcon for unlicensed operation of a
    900 MHz business radio system at Thorodin Mountain in Wondervu,
    Colorado ("*Thorodin Mountain NAL*").[^3] Falcon filed a response to
    the *Thorodin Mountain* *NAL* on October 14, 1999,[^4] but did not
    file a timely response to the *Squaw Mountain NAL*. The Enforcement
    Bureau issued a *Forfeiture Order* affirming the *Squaw Mountain
    NAL* on December 21, 1999.[^5] On December 20, 1999, Falcon filed a
    letter requesting that its October 14, 1999 response to the
    *Thorodin Mountain NAL* also be treated as a response to the *Squaw
    Mountain NAL*. Falcon stated that it had not received a copy of the
    *Squaw Mountain NAL* at the time it was issued and that it had only
    recently become aware of the *Squaw Mountain NAL*. Falcon's December
    20, 1999 pleading was an untimely response to the *Squaw Mountain
    NAL*[^6] and was submitted too late to receive consideration prior
    to issuance of the *Forfeiture Order*. Nevertheless, we will treat
    this pleading as a petition for reconsideration of the *Forfeiture
    Order* pursuant to Section 1.106 of the Commission's Rules.[^7]

6.  Falcon argues that the license for Station WPIZ573 was incorrectly
    cancelled because Station WPIZ573 was constructed and placed into
    operation in a timely manner. Falcon states that five of the ten
    channels licensed to Station WPIZ573 were constructed and placed
    into operation at the authorized Squaw Mountain site within the
    one-year construction period. Falcon further states that on December
    4, 1996, the Wireless Bureau granted High Voltage STA to construct
    and operate the remaining five channels at the Thorodin Mountain
    site for a 180-day period ending June 4, 1997. Although Falcon
    admits that the request for extension of the STA was never filed
    with the Commission, it maintains that the failure to file the
    extension request was the result of an administrative error. Falcon
    avers that it continued to operate the five channels at the Thorodin
    Mountain site under the mistaken belief that the STA had been
    extended pending the filing of an application to modify the license
    for Station WPIZ573 to permanently relocate the five channels to the
    Thorodin Mountain site. High Voltage filed a modification
    application for Station WPIZ573 on June 1, 1998. This application
    was returned to High Voltage by the frequency coordinator on
    November 11, 1998, because the call sign WPIZ573 had been deleted
    from the Commission database on March 24, 1998.

7.  Falcon also asserts that High Voltage never received the Wireless
    Bureau's 800H letter or any other request from the Commission for
    information about the status of the construction of Station WPIZ573.
    However, Falcon maintains that the Wireless Bureau was notified in
    the STA request granted on December 4, 1996, that five of the ten
    channels had been constructed and placed into operation at the
    authorized Squaw Mountain site. Additionally, Falcon asserts that
    High Voltage was not notified that the license for Station WPIZ573
    had been cancelled until late September 1998, when FCC agents from
    the Denver Office inspected the Squaw and Thorodin Mountain sites.
    Falcon concedes that High Voltage was unsuccessful in achieving
    total compliance with the Commission's rules, but argues that the
    forfeitures should be rescinded or substantially reduced in light of
    High Voltage's good faith in attempting to comply with the
    Commission's rules. Finally, Falcon requests that the license for
    Station WPIZ573 be reinstated for the five channels at the Squaw
    Mountain site.[^8]

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III. **DISCUSSION**

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8.  Section 301 of the Act prohibits radio operation "except under and
    in accordance with this Act and with a license in that behalf
    granted under the provisions of this Act."[^9] We find that Falcon
    operated the 900 MHz trunked radio system without a valid license in
    willful and repeated violation of Section 301 of the Act.
    Nevertheless, we agree with Falcon that the circumstances presented
    here justify a substantial reduction of the forfeitures assessed or
    proposed in this proceeding. We note in particular that since
    Falcon's STA request, granted on December 4, 1996, indicated
    construction of the Squaw Mountain site more than a year before the
    license for that facility was cancelled, and since Falcon did not
    receive notice of the cancellation, Falcon may have reasonably --
    albeit mistakenly -- believed that the facility was duly authorized.
    Thus, a \$20,000 forfeiture for unauthorized operation is
    unwarranted and we rescind the \$20,000 forfeiture issued to Falcon
    for its unlicensed operation of a 900 MHz trunked radio system at
    Squaw Mountain. In addition, we reduce the forfeiture amount for
    Falcon's unlicensed operation of a 900 MHz trunked radio system at
    Thorodin Mountain from \$20,000 to \$5,000. Finally, we caution
    Falcon to exercise greater diligence in submitting all appropriate
    filings to the Commission on a timely basis.

9.  Regarding Falcon's request for reinstatement of the license for
    Station WPIZ573 for the five channels at the Squaw Mountain site, a
    forfeiture proceeding is not an appropriate vehicle for seeking
    reinstatement of a cancelled license. If Falcon wishes to seek
    reinstatement of the license, it should file a request for
    reinstatement with the Wireless Telecommunications Bureau.

####  IV. ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED**, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended,[^10] and Sections 0.111,
    0.311 and 1.80(f)(4) of the Rules,[^11] Falcon Radio, Inc., **IS
    LIABLE FOR A MONETARY FORFEITURE** in the amount of five thousand
    dollars (\$5,000) for unauthorized operation of a radio station in
    willful and repeated violation of Section 301 of the Act.

11. **IT IS FURTHER ORDERED** that the forfeiture in the amount of
    twenty thousand dollars (\$20,000) issued to Falcon Radio, Inc.,
    NAL/Acct. No. 915DV0005, **IS RESCINDED**.

12. **IT IS FURTHER ORDERED** that the December 20, 1999 petition for
    reconsideration of the *Forfeiture Order* filed by Falcon Radio,
    Inc. **IS GRANTED TO THE EXTENT INDICATED HEREIN**.

13. **IT IS FURTHER ORDERED** that, pursuant to Section 405 of the Act
    and Section 1.106(f) of the Rules, the January 24, 2000 petition for
    reconsideration of the *Forfeiture Order* filed by Falcon Radio,
    Inc. **IS DISMISSED** as untimely.

14. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules[^12] 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.[^13] Payment shall
    be made by mailing a check or similar instrument, payable to the
    order of the Federal Communications Commission, to the Federal
    Communications Commission, Forfeiture Collection Section, Finance
    Branch, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
    should note NAL/Acct. No. 915DV0006. 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.[^14]

15. **IT IS FURTHER ORDERED** that, a copy of this Forfeiture Order
    shall be sent by Certified Mail Return Receipt Requested to Falcon
    Radio, Inc. at 7340 South Alton Way, Suite 2, Englewood, Colorado
    80112 and by first class mail to Benjamin J. Aron, Esq., Schwaninger
    & Associates, P.C., 1835 K Street, N.W., Suite 650, Washington, DC
    20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: *Notice of Apparent Liability*, NAL/Acct. No. 915DV0005 (released
    September 15, 1999).

[^3]: *Notice of Apparent Liability*, NAL/Acct. No. 915DV0006 (released
    September 15, 1999).

[^4]: This pleading was styled as a "Petition for Reconsideration" of
    the *Thorodin Mountain NAL*. Pursuant to Section 1.80(f)(3) of the
    Rules, 47 C.F.R. § 1.80(f)(3), we will treat this pleading as a
    response to the NAL.

[^5]: *Falcon Radio, Inc.*, DA 99-2961 (Enf. Bur., released December 21,
    1999).

[^6]: Pursuant to Section 1.80(f)(3) of the Rules, the subject of an NAL
    generally has 30 days from the date of the NAL to file a response.
    47 C.F.R. § 1.80(f)(3).

[^7]: 47 C.F.R. § 1.106. Falcon filed a petition for reconsideration of
    the *Forfeiture Order* on January 24, 2000, again requesting that we
    associate its response to the *Thorodin Mountain NAL* with the
    *Squaw Mountain NAL*. Because this petition was filed more than 30
    days after the release of the *Forfeiture Order*, it is untimely and
    therefore will not be considered. *See* 47 U.S.C. § 405; 47 C.F.R. §
    1.106(f). Nevertheless, we note that the substantive arguments
    advanced by Falcon in this petition were included in the December
    20, 1999 pleading, which we are considering here.

[^8]: Falcon does not seek reinstatement of the five channels at the
    Thorodin Mountain site, four of which have been relicensed to
    another entity.

[^9]: 47 U.S.C. § 301.

[^10]: 47 U.S.C. § 503(b).

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 C.F.R. § 1.80.

[^13]: 47 U.S.C. § 504(a).

[^14]: *See* 47 C.F.R. § 1.1914.