**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

) **File No. EB-98-DV-322**

**TACO TIME** ) **NAL Acct. No. 815DV0002**

Rock Springs, Wyoming )

######### CONSENT DECREE

1.  The Enforcement Bureau of the Federal Communications Commission (the
    "Commission") and TACO TIME RESTAURANT ("TACO TIME") hereby enter
    into this Consent Decree for the purpose of terminating a forfeiture
    proceeding arising from an investigation related to TACO TIME's
    unlicensed radio operations on 154.54 MHz and 154.51 MHz in April
    and May, 1998.

# BACKGROUND

2.  Prompted by a complaint, the Commission\'s Denver Field Office
    monitored and identified TACO TIME\'s radio transmissions on Private
    Land Mobile Radio Service frequency 154.54 MHz on April 10, 1998.
    Upon inspection of the station by FCC agents, employees of TACO TIME
    were unable to produce a valid FCC authorization for their
    transmissions on 154.54 MHz, or for any other frequency. TACO TIME
    was warned both orally and in writing to cease all unlicensed radio
    operations and instructed to obtain the appropriate FCC license
    before recommencing radio activities. A subsequent investigation by
    FCC agents on May 22, 1998 found that TACO TIME was conducting radio
    transmissions on 154.51 MHz, and again found that TACO TIME\'s
    employees were unable to produce a valid FCC license authorizing
    such radio transmissions. On May 26, 1998, the Denver Field Office
    contacted TACO TIME about the unlicensed radio use. TACO TIME
    admitted that it had continued to operate the radio system after
    receiving the warnings, but was unable to provide any evidence of
    authority for its operation on either 154.54 MHz or 154.51 MHz.

3.  On June 19, 1998, the Commission's Denver Field Office issued a
    Notice of Apparent Liability for Forfeiture ("NAL"), finding TACO
    TIME apparently liable for a forfeiture in the amount of
    \$11,000.[^1] The NAL concluded that TACO TIME had committed
    "willful and repeated violations of Section 301 of the
    Communications Act of 1934, as amended ("Act"),"[^2] by operating a
    radio transmitter without a license, and continuing to do so after
    receiving oral and written warnings that such conduct violated the
    Act.

4.  On July 8, 1999, TACO TIME submitted a response to the NAL in which
    it admitted that TACO TIME had used the radio system without a
    license even after it was warned not to do so, but claimed to have
    subsequently obtained an FCC Form 572, Temporary Permit to Operate a
    Part 90 Radio Station, on May 30, 1998. TACO TIME also asserted that
    an \$11,000 fine would be an overwhelming hardship to the business.

5.  On February 16, 1999, the former Compliance and Information Bureau
    issued a *Forfeiture Order* affirming the \$11,000 forfeiture
    amount.[^3] The *Forfeiture Order* noted that TACO TIME did not
    obtain a Temporary Permit for its operations until after the
    violations which formed the basis for the forfeiture had occurred,
    and that TACO TIME had continued to operate the system despite being
    warned of its violation of the Act.

6.  On March 11, 1999, TACO TIME submitted a letter requesting review of
    the case. In that letter, TACO TIME argued that it was not trying to
    circumvent the rules by changing to a different frequency after
    being warned about its unlicensed operation, but had merely switched
    operations from 154.54 MHz to 154.51 MHz after the first warning
    because it had already submitted an application for the necessary
    license on 154.51 MHz, it needed the radio system for the
    restaurant\'s operations, and it sought to avoid causing
    interference on 154.54 MHz. TACO TIME also attached copies of its
    corporate income tax returns for 1995, 1996 and 1997 in support of
    its claim that the \$11,000 forfeiture would impose a financial
    hardship.

7.  On November 29, 1999, the Bureau issued a Memorandum Opinion and
    Order ("*MO&O*") reaffirming the \$11,000 forfeiture, in which the
    Bureau reiterated that TACO TIME had a responsibility to ensure that
    it complied with the Act and the Commission's Rules for use of the
    radios prior to their operation on any frequency.[^4] The *MO&O*
    found TACO TIME's continued operation of the radios without
    authorization, even after receiving oral and written warnings,
    inexcusable. The *MO&O* further noted that TACO TIME\'s gross
    revenues exceeded \$1.2 million in each of the three years presented
    in the tax returns, and concluded that an \$11,000 forfeiture was
    not excessive as it would amount to less than one percent of TACO
    TIME's gross revenues.

8.  On March 10, 2000, TACO TIME conferred by telephone with Commission
    staff. At this conference, TACO TIME informed the Commission that it
    had rectified the violations shortly after the inspections by the
    Denver Field Office, and had been in compliance with the
    Commission's Rules for more than a year. Prior to the telephone
    conference, TACO TIME had applied for and been granted a license to
    operate a radio transmitter on frequency 468.48750 MHz with five
    watts of power. The license for Station WPMN593 was issued on
    October 7, 1998.

    **DEFINITIONS**

9.  For the purposes of this Consent Decree, the following definitions
    shall apply:

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(a) The "Commission" means the Federal Communications Commission.

(b) The "Bureau" means the Enforcement Bureau of the Commission.

(c) "TACO TIME" means Taco Time Restaurants, a Commission licensee in
    the Private Mobile Radio Service, Call Sign WPMN593.

(d) "*MO&O*" means *Taco Time,* 15 FCC Rcd 1319 (Enf. Bur. 1999).

(e) "Unlicensed Operations" means the radio transmissions made by TACO
    TIME prior to the issuance of the license for Station WPMN593 on
    October 7, 1998.

(f) "Enforcement Proceeding" means the investigation of and the series
    of Commission orders concerning the Unlicensed Operations,
    culminating with the *MO&O*.

(g) The "Order" means the Bureau's order adopting this Consent Decree.

(h) The "Act" means the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151 *et* *seq*.

**AGREEMENT**

10. TACO TIME acknowledges and agrees that the Commission has
    jurisdiction over the matters referenced in this Consent Decree and
    that the Bureau has the authority to enter into and adopt this
    Consent Decree.

11. TACO TIME agrees not to contest the findings in the *MO&O* that TACO
    TIME violated Section 301 of the Act with respect to the radio
    transmissions on 154.54 MHz and 154.51 MHz prior to October 7, 1998,
    provided that these findings shall not be used by the Bureau against
    TACO TIME in any other current or future proceedings before the
    Bureau, except as set forth in paragraph 18 of this Consent Decree.

12. TACO TIME and the Bureau agree that this Consent Decree does not
    constitute an adjudication of the merits, or any finding on the
    facts or law regarding any violations committed by TACO TIME arising
    out of the Enforcement Proceeding.

13. TACO TIME shall make a voluntary contribution to the United States
    Treasury in the amount of \$1,500 within 15 calendar days after the
    Order adopting this Consent Decree is no longer subject to
    reconsideration, appeal or review in accordance with the Act and the
    Commission's Rules.

14. TACO TIME agrees to implement a comprehensive Compliance Program to
    ensure continued compliance with the Communications Act and the
    Commission's Rules and policies. The Compliance Program shall
    require that TACO TIME's license for operation of a radio
    transmitter in the Private Mobile Radio Service ("PMRS") shall be
    kept current and maintained in good standing for the duration of
    TACO TIME's use of PMRS frequencies in the course of its business
    operations. In an effort to ensure that such violations do not
    recur, TACO TIME will further designate one TACO TIME employee as
    the point of contact for all matters related to the license, and
    will notify the Commission of this assignment.

15. TACO TIME and the Bureau acknowledge and agree that this Consent
    Decree shall constitute a final settlement between them.

16. In express reliance upon the covenants and representations contained
    herein, the Bureau agrees to terminate the Enforcement Proceeding at
    such time as the Bureau adopts this Consent Decree.

17. TACO TIME waives any and all rights it may have to seek
    administrative or judicial reconsideration, review, appeal or stay,
    or to otherwise challenge or contest the validity of this Consent
    Decree and the Order adopting this Consent Decree, provided the
    Order adopts the Consent Decree without modification.

18. In the event that TACO TIME is found by the Commission or its
    delegated authority to have engaged in conduct the same or similar
    to that described in paragraph 2 of this Consent Decree, TACO TIME
    and the Bureau agree that the apparent misconduct described in
    paragraph 2 may be used by the Bureau only to fashion an appropriate
    sanction, provided that TACO TIME shall not be precluded or estopped
    from litigating *de novo* any and all of the issues arising from the
    facts and allegations presented in the NAL as necessary to defend,
    in any forum, its interest from challenge by any person or entity
    not a party to this Consent Decree.

19. TACO TIME and the Bureau agree that the effectiveness of this
    Consent Decree is expressly contingent upon issuance of the Order,
    provided the Order adopts the Consent Decree without modification.

20. TACO TIME and the Bureau agree that, in the event any court of
    competent jurisdiction renders this Consent Decree invalid, the
    Consent Decree shall become null and void and may not be used in any
    manner in any legal proceeding.

21. TACO TIME and the Bureau agree that, if the Commission, or the
    United States on behalf of the Commission, brings a judicial action
    to enforce the terms of the Order adopting this Consent Decree,
    neither TACO TIME nor the Commission will contest the validity of
    the Consent Decree or Order, and TACO TIME will waive any statutory
    right to a trial *de novo* with respect to the matter upon which the
    Order is based, and shall consent to a judgment incorporating the
    terms of this Consent Decree.

22. TACO TIME agrees to waive any claims it may otherwise have under the
    Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. §§ 1.1501
    *et seq*.

23. TACO TIME agrees that any violation of the Consent Decree or the
    Order adopting this Consent Decree will constitute a separate
    violation of a Commission order, entitling the Commission to
    exercise any rights and remedies attendant to the enforcement of a
    Commission order.

24. Any provision of this Consent Decree affected by or inconsistent
    with any subsequent rule or order adopted by the Commission will be
    superseded by such Commission rule or order.

25. This Consent Decree may be signed in counterparts.

**FEDERAL COMMUNICATIONS COMMISSION**

**ENFORCEMENT BUREAU**

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_

David H. Solomon Date

Chief, Enforcement Bureau

**TACO TIME RESTAURANT**

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_

Leland Staley Date

TACO TIME

[^1]: *Notice of Apparent Liability for Forfeiture*, NAL Acct. No.
    815DV0002 (Compl. & Inf. Bur., Denver Office, released June 19,
    1998).

[^2]: 47 U.S.C. § 301.

[^3]: *Taco Time,* 14 FCC Rcd 2904 (Compl. & Inf. Bur. 1999).

[^4]: *Taco Time,* 15 FCC Rcd 1319 (Enf. Bur. 1999).