**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of )**

**)**

Callcom, Inc. **)** File No. EB-00-TS-015

Trunked Business Station, WPHD876 **)**

Denver, CO **)** NAL/Acct. No. 915DV0013

#### 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 Callcom, Inc.
("Callcom") for willfully and repeatedly violating 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 Callcom's installation and operation of a radio transmitter at
an unauthorized location in Denver, Colorado,.

2\. On September 22, 1999, the Commission's Denver, Colorado, Field
Office ("Field Office"), issued a Notice of Apparent Liability for
Forfeiture ("NAL") to Callcom in the amount of six thousand dollars
(\$6,000) for the noted violations.[^3] Callcom filed a response on
October 22, 1999.

**II. BACKGROUND**

3\. In late 1998, FCC agents from the Field Office and other Commission
field offices investigated complaints regarding noncompliant operation
and use of the 800 and 900 MHz frequency bands in the Denver, Colorado,
area. On September 23, 1998, Field Office agents met with John Gazzo,
Callcom's owner, and inspected the 900 MHz trunked radio systems that he
managed and serviced at Republic Plaza, 370 17^th^ Street, Denver,
Colorado, and at Eldorado Mountain, near Eldorado Springs, Jefferson
County, Colorado.

4\. At the Republic Plaza site, the agents inspected one transmitter,
for which Mr. Gazzo provided FCC Call Sign WPHD876, operating on
939.6375 MHz. According to Mr. Gazzo, the transmitter operating on
939.6375 MHz (and others that were trunked together with it) had been
installed at Republic Plaza in June of 1998. At Eldorado Mountain, the
agents did not find a transmitter that operated on 939.6375 MHz.

5\. An FCC agent searched the Commission's wireless license database and
confirmed that Callcom held a Commission license under Call Sign WPHD876
to operate on 939.6375 MHz. The agent found, however, that the
Commission had authorized Callcom to operate on 939.6375 MHz at north
latitude 39-54-48 and west longitude 105-17-32 (Eldorado Mountain site)
and not at north latitude 39-44-36 and west longitude 104-59-18
(Republic Plaza site), which was approximately twenty miles from the
authorized location at Eldorado Mountain

6\. As noted above, on September 22, 1999, the Field Office issued a
\$6,000 NAL to Callcom for willfully and repeatedly operating a
transmitter on 939.6375 MHz at the Republic Plaza site instead of the
Commission's authorized location at Republic Plaza. In its response to
the NAL, Callcom concedes that "it was using the license it had
incorrectly" and admits to the "violation alleged in the NAL." [^4]
Callcom challenges, on the other hand, the amount of the NAL, and
presents several arguments for mitigation or cancellation of the
forfeiture: (1) Callcom is licensed to operate on frequency 939.6375 MHz
and did not interfere with another licensee's use of 939.6375 MHz; (2)
Callcom's operation on 939.6375 MHz from the unauthorized location was
"the result of confusion," rather than an intentional act; (3) the NAL
impermissibly raised the forfeiture from the \$4,000 base amount
specified for operation at an unauthorized location to \$6,000; and (4)
Callcom is entitled to a reduction of the forfeiture amount as a "small
business" entitled to special treatment under the Small Business
Regulatory Enforcement Fairness Act ("SBREFA").

**III. DISCUSSION**

7\. Callcom concedes that it was operating a transmitter from Republic
Plaza without Commission authorization. This is a violation of Section
301 of the Act and former Section 90.113 of the Rules. The Commission
has set \$4,000 as the base forfeiture amount for construction or
operation at an unauthorized location.[^5] The Field Office reviewed the
record, the statutory factors set forth in Section 503(b)(2)(D) of the
Act,[^6] and the *Forfeiture Policy Statement* before deciding upon a
\$6,000 forfeiture. The NAL stated that the increased amount of \$6,000
was appropriate "especially in light of the fact that \[Callcom\]
knowingly and deliberately violated the Act and the Rules . . . ." As
explained below, we agree with Callcom that the forfeiture should be
reduced to the \$4,000 base forfeiture amount, but find that Callcom's
arguments for reduction below the base forfeiture amount or cancellation
of the forfeiture are without merit.

8\. The use of the phrase "knowingly and deliberately" in the NAL
indicates that the Field Office increased the proposed forfeiture to
\$6,000 because of an intentional violation.[^7] Callcom, on the other
hand, argues that its violation was inadvertent rather than intentional,
stemming from confusion in siting its transmitter.[^8] We agree with
Callcom that the record is insufficient to show that its violations were
intentional. Accordingly, we will reduce the \$6,000 forfeiture to
\$4,000, the base forfeiture amount specified for operation at an
unauthorized location. Callcom also makes other arguments against
increasing the forfeiture from the \$4,000 base forfeiture amount to
\$6,000 (i.e., Callcom's culpability, the gravity of its violation, and
the Field Office's alleged failure to explain the reasons for increasing
the forfeiture from the base forfeiture amount). Because we are reducing
the original forfeiture amount to the base forfeiture amount, these
arguments are moot and require no further discussion.

9\. Although Callcom may not have intended to violate the Act or the
Rules, it concedes that it installed the 939.6375 MHz transmitter at
Republic Plaza, an unauthorized location, in June 1998 and operated the
transmitter from that site as a result of confusion.[^9] We, therefore,
conclude from the record before us that Callcom's violations of Section
301 of the Act and former Section 90.113 of the Rules were willful and
repeated.[^10]

10\. Callcom's argument that the forfeiture should be mitigated because
Callcom is licensed to operate on 939.6375 MHz from another site is
unavailing. If Callcom held no license, the base forfeiture amount would
have been \$10,000.[^11] Thus, by selecting \$4,000 as the base
forfeiture amount, we took the fact that Callcom is a licensee into
consideration with respect to its unauthorized operation. As to
Callcom's claim that it was not causing interference to another
licensee's use of 939.6375 MHz, a finding of interference is not a
prerequisite to a finding that a licensee's operation from an
unauthorized location is a violation of the Act and the Rules.
Conversely, a finding of an absence of interference does not entitle
Callcom to a reduction of the forfeiture amount pursuant to the
Commission's downward adjustment criteria for forfeitures.[^12]

11\. Callcom avers that, under SBREFA, it qualifies as a small business
because it is a "start-up firm, independently owned and operated, and is
not dominant in its field of operation."[^13] Callcom further argues
that its qualification as a small business entity requires the
Commission, pursuant to SBREFA, to "provide for reduction or waiver of
penalties. . . ." 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 guidance for upward and downward adjustments to forfeitures,
as provided by SBREFA. *See* *Jerry Szoka*, 14 FCC Rcd 9857, 9866
(1999), *recon. denied* 14 FCC Rcd 20147 (1999). Using this guidance, we
do not find that Callcom is entitled to a further reduction or
cancellation of the forfeiture amount.[^14]

#### IV. ORDERING CLAUSES

12\. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
the Act,[^15] and Sections 0.111, 0.311, and 1.80(f)(4) of the
Rules,[^16] Callcom, Inc., **IS LIABLE FOR A MONETARY FORFEITURE** in
the amount of four thousand dollars (\$4,000) for willfully and
repeatedly violating Section 301 of the Act and former Section 90.113 of
the Rules.

13\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Rules,[^17] within 30 days of the release of this
Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.[^18] 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 NAL/Acct. No. 915DV0011 referenced
above. Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.[^19]

14\. **IT IS FURTHER ORDERED** that, a copy of this Forfeiture Order
shall be sent by Certified Mail Return Receipt Requested to Russell H.
Fox, Esq. and Russ Taylor, Esq., Gardner, Carton & Douglas, 1301 K
Street, N.W., East Tower, Washington D.C. 20005-3317, and Callcom, Inc.,
7000 North Broadway, Building 2, Suite 203, Denver, Colorado 80221.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: Since the violations at issue, the Commission consolidated its
    licensing rules into a single set of rules for all wireless radio
    services. *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). Effective February 12, 1999, the Commission
    removed Section 90.113, 47 C.F.R. § 90.113, and added Section 1.903,
    47 C.F.R. § 1.903, which incorporates the substance of removed
    Section 90.113. *Id*.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    915DV0011 (Compl. & Inf. Bur., Denver, Colo. Field Office, rel.
    Sept. 22, 1999).

[^4]: Callcom's Opposition to NAL at p. 2; Declaration of John C. Gazzo.

[^5]: *See The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*
    ("*Forfeiture Policy Statement*"), 12 FCC Rcd 17087, 17114 (1997),
    *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b), note to
    paragraph b(4), Section I.---*Base Amounts for Section 503
    Forfeitures*.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: The *Forfeiture Policy Statement* specifies "intentional
    violation" as an upward adjustment criterion. *Forfeiture Policy
    Statement*, 12 FCC Rcd at 17116; 47 C.F.R. § 1.80(b), note to
    paragraph b(4), Section II*. Adjustment Criteria for Section 503
    Forfeitures*.

[^8]: *See supra* note 4.

[^9]: Declaration of John C. Gazzo.

[^10]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f), which applies
    to 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
    or by a treaty ratified by the United States." 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).

[^11]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17113, 47 C.F.R. §
    1.80(b), note to paragraph b(4*), Section I.---Base Amounts for
    Section 503 Forfeitures*.

[^12]: *See supra* note 7.

[^13]: *See* 15 U.S.C. § 632(a)(1).

[^14]: We note that Callcom does not present any argument related to its
    ability to pay the forfeiture amount and provides no documentation
    on this point for our consideration.

[^15]: 47 U.S.C. § 503(b).

[^16]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^17]: 47 C.F.R. § 1.80.

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.