**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-08-SD-0145      |
|                                 |   |                                 |
| HST Kierland LLC,               | ) | NAL/Acct. No: 200932940001      |
|                                 |   |                                 |
| dba Westin Kierland Resort &    | ) | FRN: 0017995077                 |
| Spa,                            |   |                                 |
|                                 | ) |                                 |
| Kierland Golf Club, Starwood    |   |                                 |
| Vacation Ownership Arizona      | ) |                                 |
| Management                      |   |                                 |
|                                 | ) |                                 |
| Licensee of WPPF349 and WQGX784 |   |                                 |
|                                 | ) |                                 |
| Scottsdale, Arizona             |   |                                 |
|                                 | ) |                                 |
+---------------------------------+---+---------------------------------+

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

Released: December 11, 2008

By the District Director, San Diego Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that HST Kierland LLC d/b/a Westin Kierland Resort & Spa, Kierland
Golf Club, and Starwood Vacation Ownership Arizona Management
(collectively "Westin"), the licensee of private land mobile stations
WPPF349 and WQGX784 in Scottsdale, Arizona, apparently willfully and
repeatedly violated Section 1.903(a) of the Commission\'s Rules
(\"Rules\")[^1] by operating mobile relay stations on unauthorized
frequencies. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (\"Act\"),[^2] that Westin is
apparently liable for a forfeiture in the amount of sixteen thousand
dollars (\$16,000).

# BACKGROUND

2\. On April 25, 2008, the San Diego Office received a complaint from a
General Mobile Radio Services ("GMRS") licensee that a business was
operating on the Family Radio Service ("FRS") frequency 462.6125 MHz and
dispatching shuttle vans for a hotel in the Phoenix area, and that
business was the Westin Kierland Resort & Spa in Scottsdale, Arizona.
Under Section 95.5(a) of the Rules, only individuals and their immediate
family are now eligible to be authorized on frequency 462.6125 MHz.[^3]
Businesses may continue to operate a GMRS system if they were first
authorized before July 31, 1987, as outlined under Section 95.5(c) of
the Rules.[^4]

3\. On June 6, 2008, agents from the San Diego Office were in the
Scottsdale, Arizona, area and determined that the signal on frequency
462.6125 MHz was originating from Westin Kierland Resort & Spa at 6902
East Greenway Parkway, Scottsdale, Arizona. The agents determined that
467.6125 MHz and 462.6125 MHz were a repeater pair, with 462.6125 MHz as
the repeater output frequency and 467.6125 MHz as the repeater input
frequency. Frequency 467.6125 MHz is available only in the FRS pursuant
to Section 95.627 of the Rules.[^5]

4\. On June 8, 2008, a San Diego agent researched FCC databases and
determined that Westin was not authorized to operate a radio station on
either frequencies of 462.6125 MHz or 467.6125 MHz. The agents returned
to the Westin Kierland Resort & Spa at 6902 East Greenway Parkway,
Scottsdale, Arizona. The agents again determined that frequencies
467.6125 MHz and 462.6125 MHz were again in use by the hotel complex.

5\. On June 9, 2008, the FCC agents returned to the Westin Kierland
Resort & Spa and conducted an inspection of the private land mobile
radio facilities found at that location. The staff at the Westin
Kierland Resort & Spa showed the agents four mobile relay repeater
stations that were used at the location, on the following frequency
pairs: 461.5125/466.5125 MHz, 462.6125/467.5125 MHz, 463.5125/468.5125
MHz, and 464.8750/469.8750MHz. Equipment found operating on frequency
467.6125 MHz was not FCC certified for FRS and had attached an external
antenna which voids both FCC certification of the transmitter and the
authority to use this frequency, as outlined under Sections 95.194(b)
and 95.194(c) of the Rules.[^6]

6\. On July 24, 2008, the San Diego Office issued a Letter of Inquiry
("LOI") to Westin asking if Westin had an FCC authorization for the any
of the eight frequencies in use during the inspection on June 9, 2008:
461.5125 MHz, 462.6125 MHz, 463.5125 MHz, 464.875 MHz, 466.5125 MHz,
467.6125 MHz, 468.5125 MHz, and 469.875 MHz. The LOI also asked for
information concerning any other FCC licenses that Westin might hold at
the Scottsdale facility.

7\. On August 5, 2008, Westin responded to the LOI and acknowledged that
it was operating on the frequencies listed by the San Diego Office.
Westin stated that it did not hold a current or expired license for any
of the eight frequencies listed in the LOI. Westin further stated that
the "four (4) repeaters used at the Resort are intended to support
segregated radio communications within and around our property, serving
the Security, Engineering, Housekeeping, Stewarding and Guest Services
departments." Westin also stated that it did not hold any other licenses
under its name, however, "the affiliated, but separate, entities of the
Kierland Golf Club (WPPF349) and Starwood Vacation Ownership (SVO)
Arizona Management (d/b/a Kierland Villas, WQGX784) are indeed
licensed." A review of those licenses revealed that none of the
frequency pairs utilized by the four mobile relay stations in operation
at the Westin Kierland Resort & Spa were authorized by either
license.[^7]

# DISCUSSION

8\. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly 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. The
term \"willful\" as used in Section 503(b) of the Act has been
interpreted to mean simply that the acts or omissions are committed
knowingly.[^8]

9\. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. On June 6, 8, and 9, 2008, San
Diego agents determined that Westin was operating mobile units on the
frequency 467.6125 MHz and a mobile relay station on the frequency
462.6125 MHz without a license authorizing use of those frequencies.
Westin acknowledged to the San Diego Office that it was operating on
those frequencies, as well as three other frequency pairs on four land
mobile stations, even though those frequencies were not authorized by
the licenses used by Westin and its affiliates. The violation continued
for more than one day; therefore, it was repeated. Westin was aware that
it was operating on the unauthorized frequencies, therefore, the
violation was willful. Based on the evidence before us, we find that
Westin apparently willfully and repeatedly violated Section 1.903(a) of
the Rules by operating four mobile relay stations utilizing four
frequency pairs not authorized by its or its affiliates' licenses.

10\. Pursuant to *The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines* (\"*Forfeiture Policy Statement*\"), and Section 1.80 of the
Rules, the base forfeiture amount for using an unauthorized frequency is
\$4,000.[^9] In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the violator,
the degree of culpability, and history of prior offenses, ability to
pay, and other such matters as justice may require.[^10] As described
above, Westin operated four mobile relay stations, utilizing four
frequency pairs not authorized by any license held by Westin or its
affiliates. Applying the *Forfeiture Policy Statement*, Section 1.80 of
the Rules, and the statutory factors, we conclude that a \$16,000
forfeiture is warranted.

# ORDERING CLAUSES

11\. 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, HST Kierland LLC d/b/a Westin
Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation
Ownership Arizona Management is hereby **NOTIFIED** of this **APPARENT
LIABILITY FOR A FORFEITURE** in the amount of sixteen thousand dollars
(\$16,000) for violation of Section 1.903(a) of the Rules.[^11]

12\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
Commission\'s Rules, within thirty (30) days of the release date of this
Notice of Apparent Liability for Forfeiture, HST Kierland LLC d/b/a
Westin Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation
Ownership Arizona Management **SHALL PAY** the full amount of the
proposed forfeiture or **SHALL FILE** a written statement seeking
reduction or cancellation of the proposed forfeiture.

13\. 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/Account Number and FRN
Number referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank --
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted.  When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to:  Chief Financial
Officer \-- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C.  20554. [^12]  Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. HST Kierland LLC d/b/a Westin
Kierland Resort & Spa, Kierland Golf Club, and Starwood Vacation
Ownership Arizona Management shall also send electronic notification on
the date said payment is made to WR-Response@fcc.gov.

14\. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St, Suite 370, San Diego, California 92111and must include the
NAL/Acct. No. referenced in the caption. An electronic copy shall be
sent to WR-Response@fcc.gov.

15\. 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.

16\. **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 HST Kierland LLC d/b/a Westin Kierland
Resort & Spa, Kierland Golf Club, and Starwood Vacation Ownership
Arizona Management at its address of record.

FEDERAL COMMUNICATIONS COMMISSION

William R. Zears Jr.

District Director

San Diego Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R. § 95.5(a).

[^4]: 47 C.F.R. § 95.5(c).

[^5]: 47 C.F.R. § 95.627.

[^6]: 47 C.F.R. § 95.194(b) & (c).

[^7]: On August 1, 2008, subsequent to the investigation by the San
    Diego Office, and the receipt of the LOI, Westin was granted a
    special temporary authority ("STA), call sign WQJD615, from the
    Commission, to operate on 461.5125 MHz, 463.5125 MHz, 464.875 MHz,
    466.5125 MHz, 468.5125 MHz, and 469.875 MHz, as well as other
    frequencies, on a secondary non-interference basis. On November 10,
    2008, the Commission granted Westin a license, call sign WQJN623,
    for operation on those frequencies.

[^8]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), 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....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^10]: 47 U.S.C. § 503(b)(2)(E).

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).

[^12]: *See* 47 C.F.R. § 1.1914.