**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-DV-340       |
|                                  |   |                                 |
| Colomex, Inc.                    | ) | NAL/Acct. No.: 200832800004     |
|                                  |   |                                 |
| Licensee of Station WQBI487      | ) | FRN: 0013803523                 |
|                                  |   |                                 |
| Cañon City, Colorado             | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

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

> **Released**: March 31, 2008

By the District Director, Denver Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Colomex, Inc. (\"Colomex\"), licensee of station WQBI487,
    in Cañon City**,** Colorado, apparently willfully and repeatedly
    violated Section 1.903(a) of the Commission\'s Rules (\"Rules\")[^1]
    by operating this station on a channel other than one of the
    authorized channels listed on the license. We conclude, pursuant to
    Section 503(b) of the Communications Act of 1934, as amended
    (\"Act\"),[^2] that Colomex is apparently liable for a forfeiture in
    the amount of four thousand dollars (\$4,000).

# BACKGROUND

2.  Colomex, a franchisee of the Taco Bell Corporation, holds license
    WQBI487, qualifying under the industrial/business pool, conventional
    radio service (\"IG\"), to operate in the 460 MHz band for a term
    expiring on October 14, 2014. Under call sign WQBI487, Colomex is
    authorized to operate on any one of the fifteen frequencies listed
    on WQBI487, beginning at the first listed channel, 464.0125 MHz and
    ending at the fifteenth channel, 464.3625 MHz. WQBI487 authorizes
    Colomex to operate its mobile radios within a 121 km (75 miles)
    radius of any one of five fixed locations expressed in coordinate
    form on the license. The Taco Bell located at 1112 Royal Gorge
    Boulevard, in Cañon City, Colorado, corresponds to \"Loc\[ation\]
    4\" on the license, with its coordinates of 38º 26\' 36\" north
    latitude and 105º 13\' 55.3\" west longitude.

3.  On November 16, 2007, the Enforcement Bureau\'s Denver Office
    received a complaint of interference from the licensee of radio
    station KNBS557, licensed to operate on 154.515 MHz in Cañon City,
    Colorado.[^3] The complainant was hearing conversations related to
    the Taco Bell customer drive through ordering operations, and
    contended that transmissions from the Taco Bell radio system had
    been occurring for approximately ten years. A search of the FCC\'s
    ULS database for licensees within 10 km of station KNBS557 and
    operating on 154.515 MHz yielded only the license for radio station
    KNBS557.

4.  On January 10, 2008, utilizing direction finding techniques and
    listening to the content of the subject\'s transmissions, agents
    from the Denver Office positively identified the source of the
    signal on 154.515 MHz as being the Taco Bell restaurant located at
    1112 Royal Gorge Boulevard, in Cañon City, Colorado. The Denver
    Office agents again identified the source of the 154.515 MHz signals
    by observing the transmissions of the mobile radio in the presence
    of the Taco Bell operator. During an interview with the Taco Bell
    duty manager, a copy of the FCC license, WQBI487, was produced for
    the Denver Office agents. WQBI487 authorized only UHF channels in
    the 460 MHz band. No VHF frequencies, including 154.515 MHz, were
    authorized in the license for WQBI487. A Notice of Unlicensed Radio
    Operation (NOUO) was issued to the Taco Bell in Cañon City and
    receipt was acknowledged by the duty manager. The NOUO noted that a
    valid FCC radio license for transmission on 154.515 MHz was not in
    evidence at the time of the inspection.

5.  On January 11, 2008, the Colomex Director of Operations
    (\"Director\") called the Denver Office and spoke with one of the
    agent who had investigated Colomex\'s operations. The Director
    indicated that the radio service company was working on the radio
    equipment at that time. The Director asked the Denver agent to
    explain WQBI487\'s technical parameters, in particular the correct
    frequency for the Taco Bell located in Cañon City. The Denver agent
    explained that WQBI487 allowed for the use of fifteen 460 MHz (UHF)
    channels at the Cañon City Taco Bell location.

6.  Colomex\'s Director of Operations called again on January 14, 2008.
    In his voice mail message, the Director stated that the radio
    service company replaced the equipment and that the replacement
    transmitter was operating on 151.655 MHz. The Director stated he was
    told by the radio service company that 151.655 MHz was an itinerant
    channel that was acceptable for use.

7.  On January 15, 2008, the Denver agent called the Director and
    explained that the 151.655 MHz frequency was not authorized on
    WQBI487. The Director stated that the Cañon City Taco Bell was
    operating on 151.655 MHz because no UHF (460 MHz) equipment was
    available. The Denver agent explained to the Director that the
    licensing process must be initiated and temporary authority obtained
    before Colomex can legally operate on 151.655 MHz.

# 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) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^4] The term \"repeated\" means
    the commission or omission of such act more than once or for more
    than one day.[^5]

9.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Services must be operated only in accordance with the rules
    applicable to their particular service and with a valid
    authorization granted by the Commission.[^6] On January 10, 2008,
    the Denver agents found Colomex operating on 154.515 MHz, a
    frequency not authorized by its license WQBI487. Colomex received a
    NOUO warning it against continuing to operate on channels for which
    it did not hold a valid station authorization. On January 15, 2008,
    Colomex\'s Director of Operations admitted to switching operations
    to 151.655 MHz at the Cañon City Taco Bell. Colomex was aware the
    operations on 151.655 MHz were not authorized by its license and
    admitted such operation to the Denver agent. Consequently, its
    violation was willful. The violation occurred for more than one day,
    therefore, it was repeated. Based on the evidence before us, we find
    that Colomex apparently willfully and repeatedly violated Section
    1.903(a) of the Rules by operating station WQBI487 on frequencies
    other than those authorized by its license.

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.[^7] 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.[^8] Applying the *Forfeiture Policy Statement*, Section
    1.80, and the statutory factors to the instant case, we conclude
    that Colomex is apparently liable for a \$4,000 forfeiture.

# 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, 0.314 and 1.80 of the Commission\'s Rules, Colomex, Inc., is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of four thousand dollars (\$4,000) for violations of
    Sections 1.903(a) of the Rules.[^9]

12. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Colomex, Inc., **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. [^10] Please contact the Financial Operations Group Help
    Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
    questions regarding payment procedures.

14. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Denver Office**,**
    215 South Wadsworth Boulevard, Suite 303, Lakewood, Colorado, 80226,
    and must include the NAL/Acct. No. referenced in the caption.

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 Colomex, Inc.

FEDERAL COMMUNICATIONS COMMISSION

Nikki P. Shears

District Director

District Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: KNBS557 is an industrial/business pool, conventional radio service
    (\"IG\") licensed to operate on 154.515 MHz and for a term expiring
    on June 5, 2012.

[^4]: 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).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]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.\"

[^6]: 47 C.F.R. § 1.903(a).

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(E).

[^9]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    1.903(a).

[^10]: *See* 47 C.F.R. § 1.1914.