**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Sandra J. Gizzo ) File No. EB-00-TS-014

)

Station WNLR864 ) NAL/Acct. No. 915DV0012

Denver, CO )

)

## FORFEITURE ORDER 

**Adopted: July 6, 2000 Released: July 7, 2000**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Forfeiture Order ("Order"), we issue a monetary forfeiture
    in the amount of two thousand dollars (\$2,000) to Sandra J. Gizzo
    for willful and repeated violation of Section 301 of the
    Communications Act of 1934, as amended ("Act"),[^1] and former
    Section 90.113 of the Commission's Rules ("Rules").[^2] The noted
    violations involve Ms. Gizzo's operation of radio transmitting
    equipment from an unauthorized location.

2.  On September 22, 1999, the Commission's Denver, Colorado, Field
    Office ("Denver Office") issued a Notice of Apparent Liability for
    Forfeiture ("NAL") to Sandra J. Gizzo for a forfeiture in the amount
    of twelve thousand dollars (\$12,000).[^3] Ms. Gizzo filed a
    response to the NAL on October 22, 1999.

**II.** **BACKGROUND**

3.  On September 23, 1998, FCC agents from the Denver Office were
    investigating complaints regarding noncompliant operation and use of
    800 MHz and 900 MHz frequencies in the Denver area. As part of the
    investigation, FCC agents accompanied John Gazzo, President of
    Callcom, Inc. ("Callcom"), to Squaw Mountain in Idaho Springs,
    Colorado, to inspect a 900 MHz trunked radio system managed and
    serviced by Callcom. Mr. Gazzo identified the radio transmitting
    equipment under the management of Callcom at Squaw Mountain.
    Measurements taken by the agents confirmed that one of the operating
    transmitters in the trunked radio system was transmitting on
    938.1100 MHz. Mr. Gazzo indicated that this transmitter had been
    placed into operation on June 1, 1998, and provided FCC call sign
    WNLR864 as authorization for operation of the transmitter at Squaw
    Mountain.

4.  On September 23, 1998, FCC agents also inspected 900 MHz radio
    transmitting equipment managed by Callcom at Republic Plaza, located
    at 370 17th Street in Denver, Colorado. Mr. Gazzo identified the
    radio transmitting equipment under the management of Callcom at
    Republic Plaza. Measurements taken by the agents confirmed that two
    of the operating transmitters in the trunked radio system were
    transmitting on 938.0500 MHz and 938.1000 MHz. Mr. Gazzo indicated
    these transmitters had been placed into operation on June 1, 1998,
    and provided FCC call sign WNLR864 as authorization for operation of
    these transmitters at Republic Plaza.

5.  A search of Commission records revealed that Station WNLR864 is
    licensed to Sandra J. Gizzo. The license for Station WNLR864
    authorizes the placement of transmitters operating on 938.0500 MHz,
    938.1000 MHz and 938.1125 MHz[^4] at Eldorado Mountain, located near
    Plainview, Colorado. During an inspection of the Eldorado Mountain
    site on September 23, 1998, no transmitter was found by the FCC
    agents capable of operating on the frequencies 938.0500 MHz,
    938.1000 MHz and 938.1125 MHz. The distance between Eldorado
    Mountain, the authorized location of the 938.1125 MHz transmitter,
    and Squaw Mountain, the actual location, is approximately 20 miles.
    Similarly, the distance between Eldorado Mountain, the authorized
    location of the 938.0500 MHz and 938.1000 MHz transmitters, and
    Republic Plaza, the actual location, is approximately 20 miles.

6.  On September 22, 1999, the District Director of the Denver Office
    issued the subject NAL to Sandra J. Gizzo for operating radio
    transmitting equipment on 938.0500 MHz, 938.1000 MHz and 938.1125
    MHz at unauthorized locations in willful and repeated violation of
    Section 301 of the Act and former Section 90.113 of the Rules. The
    NAL indicated that a \$12,000 forfeiture is appropriate because the
    Commission's *Forfeiture Policy Statement*[^5] provides for a base
    forfeiture amount of \$4,000 for each frequency operated at an
    unauthorized location. On October 22, 1999, the Commission received
    Ms. Gizzo's response to the NAL, which seeks rescission or reduction
    of the forfeiture. Ms. Gizzo argues that the NAL erred in imposing a
    forfeiture because Station WNLR864 is a Specialized Mobile Radio
    ("SMR") Service station, not a trunked business radio station as
    stated in the NAL. Ms. Gizzo asserts that under Section 90.667 of
    the Rules,[^6] the licensee of an SMR station is permitted to modify
    or add new transmitter sites without securing prior FCC approval or
    modifying its license. In addition, Ms. Gizzo argues that if a
    forfeiture is imposed, the forfeiture amount should be reduced
    because the NAL erred in assessing a forfeiture for "construction or
    operation at an unauthorized location" on a per frequency basis.
    Finally, Ms. Gizzo argues that she is entitled to a reduction of the
    forfeiture amount as a "small business" under the Small Business
    Regulatory Enforcement Fairness Act ("SBREFA"). Ms. Gizzo provides
    copies of her federal income tax returns for 1996, 1997 and 1998 in
    support of this argument.

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III. **DISCUSSION**

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7.  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 provision of this Act."[^7] 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.[^8]

8.  Ms. Gizzo argues that the NAL was erroneous because Station WNLR864
    is an SMR station and under Section 90.667 of the Rules, the
    licensee of an SMR station may modify or add new transmitter sites
    without securing prior FCC approval or modifying its license.
    Section 90.667(a) of the Rules provides that an SMR licensee's
    service area "shall be defined by its originally-licensed 40 dBu
    field strength contour" and permits incumbent SMR licensees "to add
    new or modify transmit sites in this existing service area without
    prior notification to the Commission so long as their original 40
    dBu field strength contour is not expanded."[^9] Ms. Gizzo did not
    provide any information or analysis to support her claim that
    operation of the transmitters on 938.0500 MHz and 938.1000 MHz at
    the Republic Plaza site and on 938.1125 MHz at the Squaw Mountain
    site is authorized under Section 90.667(a) of the Rules. Analysis by
    Commission staff shows that operation of the transmitters on
    938.0500 MHz and 938.1000 MHz at the Republic Plaza site expands the
    original 40 dBu contour of Station WNLR864 only negligibly. However,
    the Squaw Mountain site is not even within the originally-licensed
    40 dBu contour of Station WNLR864. Transmissions on 938.1125 MHz at
    this site start beyond the original 40 dBu contour of Station
    WNLR864 and expand the contour significantly. Accordingly, operation
    of the transmitter on 938.1125 MHz at the Squaw Mountain site is not
    authorized under Section 90.667(a) of the Rules.

9.  We find that the operation of the transmitter on 938.1125 MHz from
    the unauthorized Squaw Mountain site was in willful and repeated
    violation of Section 301 of the Act and former Section 90.113 of the
    Rules.[^10] The Commission has set \$4,000 as the base forfeiture
    amount for construction or operation at an unauthorized
    location.[^11] Given that the expansion of the 40 dBu contour of
    Station WNLR864 from the Republic Plaza site is negligible, we
    conclude that no forfeiture is warranted for the operation of the
    transmitters on 938.0500 MHz and 938.1000 MHz at the Republic Plaza
    site. Instead, we admonish Ms. Gizzo for operation of the
    transmitters on 938.0500 and 938.1000 MHz at the unauthorized
    Republic Plaza site. Accordingly, we reduce the \$12,000 forfeiture
    set forth in the NAL to the \$4,000 base forfeiture amount. Ms.
    Gizzo argues that if a forfeiture is imposed, the forfeiture amount
    should be reduced because the NAL erred in assessing the forfeiture
    on a per frequency basis. Because we are reducing the original
    forfeiture amount to the base forfeiture amount for only one of the
    frequencies associated with Station WNLR864, this argument is moot
    and requires no further discussion. However, as explained below, we
    conclude that Ms. Gizzo has justified a reduction of the base
    forfeiture amount in light of her inability to pay.

10. Ms. Gizzo argues that, under SBREFA, she is entitled to reduction of
    the forfeiture amount as a small business. The Commission, through
    its *Forfeiture Policy Statement*, Section 503(b) of the Act, and
    Section 1.80(b) of the Rules, has already considered its obligations
    under SBREFA and enunciated the appropriate guidelines for upward
    and downward adjustment of forfeitures. *See Jerry Szoka*, 14 FCC
    Rcd 9857, 9866 (1999), *recon. denied*, 14 FCC Rcd 20147 (1999).
    Under these guidelines, we consider a licensee's ability to pay as a
    relevant factor in assessing forfeitures. Our review of Ms. Gizzo's
    tax returns[^12] leads us to conclude that the forfeiture should be
    further reduced from the \$4,000 base forfeiture amount to \$2,000.

####  IV. ORDERING CLAUSES

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act,[^13] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Rules,[^14] Sandra J. Gizzo, **IS LIABLE FOR A MONETARY FORFEITURE**
    in the amount of two thousand dollars (\$2,000) for operation of a
    transmitter on 938.1125 MHz at an unauthorized location in willful
    and repeated violation of Section 301 of the Act and former Section
    90.113 of the Rules.

12. **IT IS FURTHER ORDERED** that Sandra J. Gizzo **IS ADMONISHED** for
    operation of transmitters on 938.500 MHz and 938.1000 MHz at an
    unauthorized location in willful and repeated violation of Section
    301 of the Act and former Section 90.113 of the Rules.

13. **IT IS FURTHER ORDERED** that Sandra J. Gizzo's request for
    confidentiality **IS GRANTED**, and that the financial documents
    submitted with her response to the NAL **SHALL BE KEPT
    CONFIDENTIAL** pursuant to Sections 0.457(d) and 0.459 of the Rules.

14. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent by
    Certified Mail Return Receipt Requested to Sandra J. Gizzo, 3661
    Maryland Parkway, Suite 41, Las Vegas, Nevada 89109, and to her
    counsel, Russell H. Fox, Gardner, Carton & Douglas, 1301 K Street,
    N.W., Suite 900, Washington, D.C. 20005-3317.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: ^?^ 47 C.F.R. § 90.113. Effective February 12, 1999, Section
    90.113 of the Rules was incorporated into Section 1.903(a) of the
    Rules, 47 C.F.R. § 1.903(a). *See In the Matter of the Biennial
    Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27,
    80, 87, 90, 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).
    Since Section 90.113 of the Rules was applicable at the time the
    violations were noted, that section was referenced in the NAL.

[^3]: ^?^ *Notice of Apparent Liability*, NAL/Acct. No. 915DV0012
    (Compl. & Inf. Bur., Denver Office, released September 22, 1999).

[^4]: ^?^ The NAL erroneously stated that the license for Station
    WNLR864 authorizes the placement of a transmitter on 938.1100 MHz at
    Eldorado Mountain. The actual licensed frequency is 938.1125 MHz.
    During the September 23, 1998 inspection, measurements taken by the
    FCC agents showed that the transmitter at the Squaw Mountain site
    was operating at that time on 938.1100 MHz. To avoid confusion, we
    will refer hereafter to the licensed frequency for the transmitter
    operating at the Squaw Mountain site, 938.1125 MHz, rather than the
    frequency as measured at the time of the September 23, 1998
    inspection.

[^5]: ^?^ *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087, 17114 (1997) ("*Forfeiture Policy Statement*"),
    *recon. denied*, 15 FCC Rcd 303 (1999).

[^6]: ^?^ 47 C.F.R. § 90.667.

[^7]: ^?^ 47 U.S.C. § 301.

[^8]: ^?^ 47 C.F.R. § 90.113.

[^9]: ^?^ 47 C.F.R. § 90.667(a).

[^10]: ^?^ 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 that it was doing the act in
    question. *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991) and Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2),
    which applies to Section 503 of the Act.

[^11]: ^?^ *Forfeiture Policy Statement*, 12 FCC Rcd at 17114; 47 C.F.R.
    § 1.80(b), note to paragraph (b)(4), *Section I. --* *Base Amounts
    for Section 503 Forfeitures*.

[^12]: ^?^ Ms. Gizzo requests that her tax returns be afforded
    confidential treatment pursuant to Section 0.457(d) and 0.459 of the
    Rules, 47 C.F.R. §§ 0.457(d) and 0.459. We grant this request.

[^13]: 47 U.S.C. § 503(b).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).