**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

**ARVADA EXCAVATING COMPANY, INC.** ) File No. EB-00-TS-010

Trunked Business Station WPIM675 )

Denver, Colorado ) **NAL/Acct. No. 915DV0007**

**FORFEITURE ORDER**

**Adopted:** April 21, 2000 **Released:** April 24, 2000

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1\. In this Forfeiture Order ("Order"), we issue a monetary forfeiture
in the amount of four thousand dollars (\$4,000) against Arvada
Excavating Company, Inc. ("Arvada"), licensee of Trunked Business
Station WPIM675, for willful violation of former Section 90.113 of the
Commission's Rules ("Rules"), [^1] and Section 301 of the Communications
Act of 1934, as amended ("Act").[^2] The noted violations involve
Arvada's operation from an unauthorized location.

2.  On September 22, 1999, the Commission's Denver, Colorado, Field
    Office ("Denver Office") issued the referenced Notice of Apparent
    Liability for Forfeiture ("NAL") in the amount of four thousand
    dollars (\$4,000) to Arvada for the noted violations.[^3] Arvada
    filed a response to the NAL on October 22, 1999.

    **II. BACKGROUND**

    3\. Arvada is licensed to operate Trunked Business Station WPIM675
    from a site located on Eldorado Mountain in Boulder County, Colorado
    ("The Eldorado Mountain site") on frequencies 936.48750 and
    936.500000 MHz. Arvada uses Station WPIM675 to dispatch its
    vehicles.

4\. On September 23, 1998, FCC agents from the Denver Office and other
FCC offices were investigating complaints concerning land mobile
operation in the Denver area. As part of the investigation, FCC agents
interviewed Michael Tony Westall, who owns American Communications
Systems, Inc. ("ACS"), a land mobile communications provider. During the
interview, Mr. Westall stated that he had placed a station on Lower
Squaw Mountain in Jefferson County, Colorado ("The Squaw Mountain
site"), which was not authorized to operate at that location. On the
same date, an FCC agent inspected a facility managed by ACS at the Squaw
Mountain site and measured the frequency of that facility as 936.500000
MHz. According to the Commission's license records, no station is
authorized to operate on 936.500000 MHz at the Squaw Mountain site.

5\. On September 23, 1998, Commission agents also inspected facilities
managed by ACS at the Eldorado Mountain site, which is about 20 miles
from the Squaw Mountain site. The facilities at the Eldorado Mountain
site included a transmitter for station WPIM675 which operated on
936.48750 MHz but did not include any transmitter which operated on
936.500000 MHz.

6\. According to the Commission's license records, Arvada holds the
exclusive authorization in the Denver area to operate on 936.50000 MHz.
On September 24, 1998, FCC agents interviewed Mike Ursetta, who is the
owner and manager of Arvada. Mr. Ursetta stated, *inter alia*, that he
uses Station WPIM675 in his excavating business, that ACS is his service
contractor for that station and that he leases the transmitters for
WPIM675 from ACS.

7\. On September 22, 1999, the District Director, Denver Field Office,
issued the subject NAL to Arvada for operating from a location not
authorized by its license, in repeated and willful violation of former
Section 90.113 an of the Rules and Section 301 of the Act. On October
22, 1998, the Commission received Arvada's response to the NAL, in which
Arvada requested cancellation of the proposed forfeiture. Arvada
asserted that it "had nothing to do with" the operation of the
transmitter at the Squaw Mountain site on 936.50000 MHz. According to
Arvada, ACS moved a transmitter from the Eldorado Mountain site to the
Squaw Mountain site and then "inadvertently selected a repeater box that
had Arvada's frequency programmed into it." Arvada states further that
it "never authorized ACS to relocate the WPIM675 repeater . . . \[and\]
. . . was not aware of any such relocation" and that "ACS never intended
to relocate facilities licensed to Arvada."

**III. DISCUSSION**

8\. As the NAL explicitly states, the forfeiture amount in this case was
assessed in accordance with Section 503 of the Act[^4], Section 1.80 of
the Rules,[^5] and *The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines*, 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303
(1999) ("*Policy Statement*"). In examining Arvada's response, Section
503(b) of the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may require.
47 U.S.C. § 503(b)(2)(D).

9\. 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." Former Section 90.113 of the Rules
provided that stations in the Land Mobile Radio Services must be
operated in accordance with a proper authorization granted by the
Commission.

10\. Arvada admits in its response that a repeater operating on
936.50000 MHz, the WPIM675 frequency, is installed at the Squaw Mountain
site. Arvada cannot escape responsibility for its operation from an
unauthorized location by blaming ACS and claiming that it did not know
about ACS's actions. *See* Section 90.427 of the Rules.[^6] Arvada is
responsible for whatever actions ACS takes as the service contractor for
station WPIM675. As the licensee of WPIM675, Arvada has an affirmative
duty to maintain control over that station. *See* Section 310(d) of the
Act.[^7] Part of Arvada's duty to maintain control over Station WPIM675
is keeping itself informed about any changes in the operating parameters
of that station, such as relocation of its transmitter.

11\. Arvada's claim that ACS did not intend to relocate Station WPIM675
to the Squaw Mountain site is not credible. As the licensee of Station
WPIM675, Arvada holds the exclusive authorization in the Denver area for
frequency 936.50000 MHz. As of September 23, 1998, no transmitter
operating on that frequency was installed at WPIM675's authorized site
but such a transmitter had been installed by ACS at the Squaw Mountain
site. The apparent purpose of such a transmitter at the Squaw Mountain
site is to serve as apparatus for Station WPIM675. Neither ACS nor
Arvada has offered any alternative explanation for the existence of a
transmitter operating on the frequency 936.50000 MHz at the Squaw
Mountain site.

12\. We find that Arvada's operation from an unauthorized location on
the frequency 936.50000 MHz was in repeated and willful violation of
Section 301 of the Act and former Section 90.113 of the Rules. [^8] We
have examined Arvada's response to the NAL pursuant to the statutory
factors above, and in conjunction with the *Policy Statement* as well.
As a result of our review, we conclude that Arvada has failed to justify
cancellation or reduction of the proposed forfeiture amount. Therefore,
we affirm the forfeiture of four thousand dollars (\$4,000).

# IV. ORDERING CLAUSES

13\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^9]
Arvada Excavating Company, Inc., **IS LIABLE FOR A MONETARY FORFEITURE**
in the amount of four thousand dollars (\$4,000) for the repeated and
willful violation of Section 301 of the Act and former Section 90.113 of
the Rules, which prohibit unauthorized operation.

14\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Rules within thirty (30) days of the release of
this Order. If the forfeiture is not paid within the specified period,
the case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.[^10] Payment may be made by
credit card through the Commission's Credit and Debt Management Center
at (202) 418-1995 or by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. 915DV0007. Requests for full
payment under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12^th^ Street, S.W., Washington, D.C. 20554.

15\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
by certified mail, return receipt requested, to Arvada Excavating Co.,
Inc., 7714 Reno Drive, Arvada, Colorado 80002, and to its counsel,
Robert J. Keller, Esq., 4200 Wisconsin Avenue, N,W., \-- PMB#106-233,
Washington, D.C. 20016-2157.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: Effective on February 12, 1999, the station authorization
    requirement formerly contained in Section 90.113 of the Rules, 47
    C.F.R. § 90.113, was moved to Section 1.903 of the Rules, 47 C.F.R.
    § 1.903. *See Biennial Regulatory Review -- Amendments of Parts 0,
    1, 13, 22, 24 , 26, 27, 80, 87 , 95, 97, and 101 of the Commission's
    Rules to Facilitate the Development and Use of the Universal
    Licensing System in the Wireless Telecommunications Services*, 13
    FCC Rcd 21027 (1998).

[^2]: 47 U.S.C. § 301.

[^3]: *Notice of Apparent Liability For Forfeiture*, NAL Acct. No.
    915DV0007 (Compl. and Inf. Bureau, Denver Office, Released September
    22, 1999).

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 C.F.R. § 90.427

[^7]: 47 U.S.C. § 310(d)

[^8]: ^8^ The word "willfully" as employed in Section 503 of the Act
    does not require that the violation in question be

    intentional. It is necessary only that a licensee knew it was doing
    the act in question. *See Southern California Broadcasting Co.*, 6
    FCC Rcd 4387 (1991).

[^9]: 47 C.F.R. §§ 0.111, 0.311 and 1.80(f)(4).

[^10]: 47 U.S.C. § 504(a).