Before the

# Federal Communications Commission

# Washington, D.C. 20554

In re **)**

**)**

**PCS PARTNERS, L.P.** **)** File No. EB-01-IH-0084

**)** NAL/Acct. No. 200132080021

Applicant for Wireless Telecommunications **)**

Bureau Radio Service Authorization **)**

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

**Adopted**: March 14, 2001 **Released**: March 16, 2001

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    PCS Partners, L.P. ("PCS Partners") failed to timely file its
    "long-form" application (FCC Form 601) and accompanying ownership
    report (FCC Form 602) following completion of the Commission's C and
    F Block Broadband PCS Auction, in apparent willful and repeated
    violation of Sections 1.2107(c) and 1.2107(f) of the Commission\'s
    rules.[^1] We conclude that PCS Partners is apparently liable for a
    forfeiture in the amount of \$3,000.

**II. BACKGROUND**

2.  On January 26, 2001, the Commission staff completed the auction of
    422 licenses in the C and F Block Broadband PCS Auction. PCS
    Partners was among the participants in that auction. On January 29,
    2001, the Wireless Telecommunications Bureau issued a Public Notice
    that provided detailed information concerning specific post-auction
    obligations of winning bidders.[^2] The Public Notice established
    February 12, 2001, as the deadline for winning applicants to submit
    their ownership and long-form applications. The Public Notice also
    announced that PCS Partners was a winning bidder in Auction 35.[^3]

3.  PCS Partners acknowledges that it received a copy of the Public
    Notice on January 30, 2001.[^4] On February 13, 2001, Commission
    staff telephoned David G. Behenna, PCS Partners' sole authorized
    bidder and only employee, to notify him that the Commission staff
    had not received PCS Partners' long-form application by the February
    12, 2001, deadline.[^5] Thereafter, on February 14, 2001, PCS
    Partners manually filed its ownership report, and, on February 16,
    2001, it submitted a Waiver Request and electronically filed its
    long-form application. In its Waiver Request, PCS Partners explained
    that Mr. Behenna had not retained legal counsel in connection with
    post-auction filings. PCS Partners also stated that because Mr.
    Behenna was involved "in numerous other matters," his failure to
    meet the long-form filing deadline was inadvertent.[^6]

**III. DISCUSSION**

4.  Section 1.2107(c) of the Commission's rules provides that:

> a high bidder that meets its down payment obligations in a timely
> manner must, within ten (10) business days after being notified that
> it is a high bidder, submit an additional application (the "long-form
> application") pursuant to the rules governing the service in which the
> applicant is the high bidder.

This section further provides that long-form applications must be filed
electronically. Additionally, Section 1.2107(f) requires applicants to
file an ownership report with its long-form application. The ownership
form must be filed manually.

5.  The purpose of the long-form application is to provide vital
    information concerning winning bidders and their qualifications to
    be Commission licensees. Public notice of acceptance of a winning
    bidder\'s long-form application triggers the establishment of the
    pleading cycle for petitions to deny.[^7] The timely filing of a
    long-form application is thus essential to the efficiency of the
    competitive bidding licensing process.

6.  On October 5, 2000, the Commission staff released a Public Notice
    announcing the upcoming C and F Block Broadband PCS Auction.[^8]
    Therein, auction participants were informed of their post-auction
    filing obligations in the event they were winning bidders. Thus, PCS
    Partners was on notice even before the auction commenced that, if it
    were a winning bidder, it would have to electronically submit a
    properly completed long-form application within ten business days
    after release of the auction closing notice. In addition, PCS
    Partners acknowledges receiving the January 29, 2001, post-auction
    Public Notice establishing February 12, 2001 as the filing deadline
    and describing in detail the long-form application and ownership
    report filing requirements. Nevertheless, PCS Partners failed to
    file its long-form application and ownership report on time. In
    light of these facts, we conclude that PCS Partners failed to file
    its ownership report and long-form application by the established
    and well publicized deadline, in willful and repeated violation of
    Sections 1.2107(c) and 1.2107 (f) of the Commission's rules.[^9]

7.  Section 503(b)(1)(B) of the Communications Act of 1934, as amended,
    provides that any person who willfully or repeatedly fails to comply
    with the Act or the Commission's rules shall be liable for a
    forfeiture penalty.[^10] The guidelines contained in the
    Commission\'s *Forfeiture Policy Statement* specify a base
    forfeiture amount of \$3,000 for failure to file required
    information.[^11] The guidelines also permit the Commission to issue
    a higher or lower forfeiture amount based on such factors as the
    nature, circumstances, extent and gravity of the violation, and,
    with respect to the violator, the degree of culpability, history of
    any prior offenses, ability to pay, and such other matters as
    justice may require. PCS Partners does not dispute that it received
    actual notice of the filing requirements and that it failed to
    timely file the necessary forms. We believe a forfeiture is
    appropriate in this case, and see no basis for departing from the
    base forfeiture amount. Thus, we propose a forfeiture in the amount
    of \$3,000. This amount is consistent with at least one other case
    involving a similar transgression. [^12]

**IV. ORDERING CLAUSES**

8.  ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
    1934, as amended, and Section 1.80 of the Commission\'s rules, PCS
    Partners, L.P. is hereby NOTIFIED of its APPARENT LIABILITY FOR A
    FORFEITURE in the amount of \$3,000 for willfully and repeatedly
    violating Sections 1.2107(c) and 1.2107(f) of the Commission\'s
    rules.

9.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission\'s
    rules, 47 C.F.R. § 1.80, that within thirty days of the release of
    this Notice, PCS Partners SHALL PAY the full amount of the proposed
    forfeiture, or SHALL FILE a written response seeking reduction or
    cancellation

of the proposed forfeiture.[^13]

10. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
    Certified Mail \-- Return Receipt Requested, to PCS Partners, L.P.,
    Attn. David G. Behenna, 111 North Sepulveda Boulevard, Suite 250,
    Manhattan Beach, CA, 90266-6850; and to counsel for PCS Partners,
    L.P., Piper Marbury Rudnick & Wolfe, Attn. Mark J. Tauber, Esq.,
    1200 19^th^ Street, NW, Washington, DC, 20036-2412.

> FEDERAL COMMUNICATIONS COMMISSION
>
> David H. Solomon
>
> Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.2107(c), 1.2107(f).

[^2]: Public Notice, C and F Block Broadband PCS Auction Closes, DA
    01-211 (WTB, released January 29, 2001).

[^3]: *Id.* at Attachment A.

[^4]: *See* Waiver Request, dated February 15, 2001, from Mark J.
    Tauber, Piper Marbury Rudnick & Wolfe, counsel for PCS Partners, to
    Thomas J. Sugrue, Chief, Wireless Telecommunications Bureau ("Waiver
    Request"). The Wireless Telecommunications Bureau subsequently
    granted the Waiver Request. *See* *In re Application of PCS
    Partners, L.P*., Order, DA 01-518 (WTB, released Feb. 27, 2001).

[^5]: *See* Waiver Request.

[^6]: *See* Waiver Request.

[^7]: *See* 47 C.F.R. § 1.2108(b).

[^8]: Public Notice, C and F Block Broadband PCS Spectrum Auction
    Scheduled for December 12, 2000, DA 00-2259 (WTB, released October
    5, 2000).

[^9]: The Commission has held that an act or omission is "willful" if it
    is a conscious and deliberate act or omission, whether or not there
    is any intent to violate the rule. *Southern California Broadcasting
    Company*, 6 FCC Rcd 4387 (1991)(definition of willfulness contained
    in 47 U.S.C. § 312(f) applies equally to 47 U.S.C. § 503).
    Furthermore, a continuing violation is "repeated" if it lasts more
    than one day. *Id*., 6 FCC Rcd at 4388.

[^10]: 47 U.S.C. § 503(b)(1)(B).

[^11]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Commission's Rules*, 12 FCC Rcd 17087, 17114
    (1997)("*Forfeiture Policy Statement"*); *recon denied* 15 FCC Rcd
    303 (1999).

[^12]: *See e.g., In the Matter of Application of PinPoint
    Communications, Inc., Notice of Apparent Liability for Forfeiture*,
    14 FCC Rcd 6427 (WTB, 1999) (proposing a \$3,000 forfeiture against
    winning bidder that filed its long-form application six days late
    because of administrative oversight).

[^13]: Payment may be made by mailing a check or similar instrument,
    payable to the order of the Federal Communications Commission, to
    the Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment must reference the Acct. No. identified
    above. The response, if any, must reference the File No. identified
    above and be directed to Charles W. Kelley,\
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    Federal Communications Commission, 445 12th Street, S.W., Room
    3-B443, Washington DC 20554. The Commission will not consider
    reducing or canceling the forfeiture in response to a claim of
    inability to pay unless the respondent 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

    respondent'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.