**Before the**

**Federal Communications Commission**

######### Washington, D.C. 20554

In the Matter of )

)

Notice of Apparent Liability for Forfeiture of )

)

**Suburban Cellular, LLC** )

) File No. 920EF0045

Licensee of Cellular Radiotelephone Service )

)

)

**[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}**

**Adopted: June 11, 1999 Released: June 14, 1999**

By the Chief, Enforcement and Consumer Information Division,

Wireless Telecommunications Bureau:

**I. Introduction**

1.  This is a Notice of Apparent Liability for Forfeiture, pursuant to
Section 503(b) of the Communications Act of 1934, as amended (the
\"Act\"),[^1] and Section 1.80 of the Commission\'s Rules,[^2] against
Suburban Cellular, LLC (\"Suburban\"), licensee of Cellular
Radiotelephone Service Station KNKR205 Market 19, Channel Block B2 in
Denver, Colorado. As discussed below, we find that Suburban failed to
timely notify the Commission of the commencement of service of Station
KNKR205, in apparent violation of Section 22.142(b) of the Commission\'s
Rules.[^3] We conclude that Suburban is apparently liable for forfeiture
in the amount of one thousand five hundred dollars (\$1,500).

**II. Background**

2.  The Commission authorized Suburban to construct Station KNKR205 on
May 9, 1997, at Denver, Colorado, for Market 19, Channel Block B2. The
authorization required that Suburban complete construction and commence
service within one year of the date of the authorization, May 9, 1998.
On July 1, 1998, Suburban filed an FCC Form 489 whereby Suburban
notified the Commission that it had completed construction of Station
KNKR205 and commenced service on February 27, 1998. Suburban
acknowledged that it had not filed its FCC Form 489 on time, attributed
its dereliction to inadvertence, and requested a waiver of Section
22.142(b)[^4] of the Commission\'s rules.[^5]

**III. Discussion**

3.  Section 22.142(b) of the Commission\'s Rules[^6] provided in
pertinent part: *\"Notification Requirement*. Licensees must notify the
FCC (using FCC Form 489) of commencement of service to subscribers . . .
no later than fifteen days after service begins.\"[^7] The purpose of
the Form 489 is to notify the Commission that construction has been
completed, and the frequency is in use, so that the Commission will not
assign that frequency to anyone else. FCC Form 489, therefore, has an
important function. The Bureau\'s policy of imposing monetary
forfeitures for willful and/or repeated violation of Section 22.142(b)
of the Commission\'s Rules is well established.[^8]

4.  Pursuant to Section 22.142(b)[^9], Suburban was required to notify
the Commission that it had completed construction and commenced service
by filing an FCC Form 489 within 15 days of commencement of service.
Suburban, however, did not file a FCC Form 489 notifying the Commission
of its completion of construction and commencement of service of Station
KNKR205 until July 1, 1998, approximately four months after the deadline
for doing so. Suburban admits that it did not timely file a FCC Form 489
for Station KNKR205 due to an inadvertent error.[^10] Based on the
information before us, we find that Suburban failed to timely notify the
FCC of the commencement of service of Station KNKR205 in apparent
violation of Section 22.142(b) of the Commission\'s Rules.

> 5\. We also find no basis for waiving Section 22.142(b) of the
> Commission's Rules[^11] in this

instance. According to Section 1.925(b)(3) of the Commission's
Rules,[^12] the Commission may grant such a waiver if:

> \(i\) The underlying purpose of the rule(s) would not be served or
> would be frustrated by application to the instant case, and that a
> grant of the requested waiver would be in the public interest; or
>
> \(ii\) In view of unique or unusual factual circumstances of the
> instant case, application of the rule(s) would be inequitable, unduly
> burdensome or contrary to the public interest, or the applicant has no
> reasonable alternative.

Suburban has not met its burden as to either criterion. Suburban does
not demonstrate how the underlying purpose of Section 22.142(b)[^13]
would be frustrated in the absence of a waiver. It does not show how
grant of a waiver would serve the public interest. Finally it does not
identify any unique or unusual circumstances that would justify a
waiver. Clearly, mere inadvertent oversight does not provide a basis for
waiving Section 22.142(b) of the Commission's Rules.[^14]

6\. The guidelines in the Commission's *Forfeiture Policy Statement*
specify a base forfeiture amount of \$3,000 for failure to file required
forms or information.[^15] We note that there have been cases subject to
the *Forfeiture Policy Statement* in which we have used a \$2,000 base
amount for forfeitures involving a failure to file a timely FCC Form
489.[^16] Upon further reflection, however, in light of the Commission's
clear guidance and the fact that the Form 489 does serve an important
function, we believe it is more appropriate to use the \$3,000 amount as
the appropriate base amount. Section 503(b)(2)(D) of the Act[^17]
requires the Commission to consider "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 such other matters as justice may require." In the instant case
taking into consideration all of the factors required by Section
503(b)(2)(D) of the Act,[^18] Suburban's voluntary disclosure of its
violation to the Commission, and the duration of the violation, we
believe it is appropriate to reduce the amount of the proposed
forfeiture to \$1,500.

**IV. Ordering Clauses**

7\. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
1934, as amended,[^19] and Section 1.80 of the Commission\'s Rules,[^20]
Suburban is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of one thousand five hundred dollars (\$1,500) for violating
Section 22.142(b) of the Commission\'s Rules.[^21]

8\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission\'s
Rules,[^22] that within thirty days of the release of this Notice,
Suburban SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.[^23]

9\. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
Certified Mail/ Return Receipt Requested, to Suburban Cellular, LLC, 14
Benevento Circle, Peabody, MA 01960.

**FEDERAL COMMUNICATIONS COMMISSION**

Catherine W. Seidel

Chief, Enforcement and Consumer Information Division

Wireless Telecommunications Bureau

[^1]: 47 U.S.C. § 503(b).

[^2]: 47 C.F.R. § 1.80.

[^3]: 47 C.F.R. § 22.142(b).

[^4]: 47 C.F.R. § 22.142(b)

[^5]: *See* Exhibit \"A\" attached to the FCC Forms 489 filed by
    Suburban on July 1, 1998.

[^6]: 47 C.F.R. § 22.142(b).

[^7]: On February 12, 1999, Section 22.142(b) of the Commission\'s Rules
    was replaced by Section 1.946(d) of the Commission\'s Rules. *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 Service in the Wireless Telecommunications Services*, 13
    FCC Rcd 21027 (1998). The prior rule is applicable here because
    Pager One filed its FCC Forms 489 on July 1, 1998.

[^8]: *See Network Services, LLC,* 13 FCC Rcd 6688 (Wireless Tel. Bur.
    1998).

[^9]: 47 C.F.R. § 22.142(b).

[^10]: *See* Exhibit "A" attached to the FCC Form 489 filed by Suburban
    on July 1, 1998.

[^11]: 47 C.F.R. § 22.142(b).

[^12]: 47 C.F.R. § 1.925(b)(3).

[^13]: 47 C.F.R. § 22.142(b).

[^14]: *Id.*

[^15]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Commission's Rules (Forfeiture Policy
    Statement),* 12 FCC Rcd 17087, 17114 (1997).

[^16]: *See*, *e.g.*, *Frank Lepera*, DA 99-661 (Wireless Tel. Bureau
    released April 6, 1999) and *Raymond Bassett*, DA 99-660 (Wireless
    Tel. Bureau released April 6, 1999).

[^17]: 47 U.S.C. § 503(b)(2)(D).

[^18]: *Id.*

[^19]: 47 U.S.C. § 503(b).

[^20]: 47 C.F.R. § 1.80.

[^21]: 47 C.F.R. § 22.142(b).

[^22]: 47 C.F.R. § 1.80.

[^23]: Payment of the forfeiture may be made by credit card through the
    Commission\'s Billings and Collections Branch 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 file number of this proceeding