Before the

**Federal Communications Commission**

# Washington, D.C. 20554

In re Notice of Apparent Liability for Forfeiture of ) )

**MULZER ENTERPRISES, INC.** ) File No. 720EF0011

)

Licensee of Paging and Radiotelephone Service Station )

KNLM888, Bandon, Indiana )

**[MEMORANDUM OPINION AND ORDER]{.underline}**

**Adopted: June 29, 1999** **Released: June 29, 1999**

By the Chief, Enforcement and Consumer Information Division,

Wireless Telecommunications Bureau:

## I. Introduction

1.  The Chief, Enforcement and Consumer Information Division, of the
    Wireless Telecommunications Bureau ("Bureau"), pursuant to delegated
    authority, has under consideration a "Petition for Reconsideration
    of Forfeiture" ("Petition") filed on November 12, 1998, by Mulzer
    Enterprises, Inc. ("Mulzer").[^1] The Petition seeks reconsideration
    of a *Memorandum Opinion & Order*[^2] issued by the Acting Chief,
    Enforcement and Consumer Information Division ("Division"), imposing
    a \$2,000 forfeiture for failing to file FCC Form 489, in violation
    of Section 22.142(b) of the Commission\'s Rules.[^3] For the reasons
    discussed below, we deny Mulzer\'s Petition for Reconsideration and
    affirm the *Forfeiture Order*.

## II. Background

2.  On August 25, 1995, the Commission granted Mulzer authorization to
    construct facilities for radio station KNLM888.[^4] Pursuant to
    Section 22.511 of the Commission's Rules,[^5] Mulzer was required to
    complete construction within one year of the grant date, *i.e*., by
    August 25, 1996. In addition, Section 22.142(b) of the Commission\'s
    Rules[^6] required Mulzer to file an FCC Form 489 within 15 days
    after the start of service in order to notify the Commission that
    service had commenced. Mulzer completed construction and began
    operating the station before the expiration of the August 25, 1996,
    construction period.[^7] Mulzer, however, failed to timely file the
    requisite FCC Form 489.[^8] Unaware that Mulzer had completed
    construction, the Bureau, on October 30, 1996, released a Public
    Notice[^9] terminating Mulzer's license for call sign KNLM888 at
    Bandon, Indiana, by operation of Section 22.144 of the Commission's
    Rules.[^10] On December 5, 1996, Mulzer filed FCC Form 489 for
    station KNLM888 at Bandon, Indiana.[^11]

3.  On July 17, 1997, the Division released a *Notice of Apparent
    Liability for Forfeiture* against Mulzer.[^12] We found that Mulzer
    had commenced operation prior to filing FCC Form 489, thereby
    violating Section 22.142(b) of the Commission\'s Rules.[^13] We also
    determined \$2,000 to be the appropriate forfeiture amount.[^14]

4.  Mulzer filed a response on August 18, 1997, requesting that the
    forfeiture be reduced or rescinded.[^15] Mulzer asserted that its
    violation was unintentional, that its failure to file was a minor
    violation, that Mulzer has a record of complying with the
    Commission's Rules, and that Mulzer promptly disclosed its violation
    as soon as it learned of its failure to file Form 489.[^16] In the
    *Forfeiture Order* released on October 13, 1998, we considered and
    rejected Mulzer's arguments.[^17] First, we noted that "intent is
    not required to show either a willful or repeated violation" of a
    Commission Rule.[^18] We then pointed out that the Commission
    "routinely imposes monetary forfeitures" for failing to file FCC
    Form 489.[^19] We also determined, contrary to Mulzer's claim, that
    Mulzer's disclosure of misconduct was not voluntary.[^20] Last, we
    noted that Mulzer had not demonstrated with specificity how its
    record of compliance with Commission Rules warranted a reduction of
    the forfeiture.[^21]

## III. Discussion

5.  Mulzer offers two arguments in its Petition. First, it argues that
    the Division's failure to reduce the forfeiture based on Mulzer's
    "history of past compliance" with Commission Rules has in effect
    resulted in "a new forfeiture standard in that \[the Commission\]
    has elected to shift to the licensee the burden of proving \[a\]
    past record of compliance."[^22] In order to demonstrate with
    specificity its history of compliance, Mulzer also submitted a sworn
    declaration.[^23] Mulzer's manager of radio operations, Jerry Paris,
    declares that "Mulzer has been operating its Part 22 public mobile
    radio station, KNLM888, in compliance with the FCC's rules and
    regulations since it was first licensed, approximately five years
    ago."[^24] Mr. Paris signed the declaration on November 11,
    1998.[^25]

6.  We disagree with Mulzer's contention that its alleged history of
    compliance with Commission Rules warrants a reduction in the
    forfeiture. Contrary to Mulzer's assertion that the "FCC has not
    required the petitioner to demonstrate with specificity its record
    of compliance,"[^26] Section 1.80(f)(3) of the Commission's Rules
    explicitly states that:

Any showing as to why the forfeiture should not be imposed or should be
reduced

shall include a detailed factual statement and such documentation and
affidavits as

may be pertinent.[^27]

Moreover, Mr. Paris' claim that Mulzer has operated station KNLM888 in
compliance with the Commission's Rules since it was first licensed is
undermined by a prior inconsistent statement submitted to the Commission
by Mulzer. On April 18, 1996, \-- approximately six months before the
authorization for the transmitter in question here was terminated \--
Mulzer admitted with respect to another base station licensed under call
sign KNLM888 that it had failed to file a timely FCC Form 489.[^28]
Under these circumstances, Mulzer's claim that it has a history of
compliance with the Commission's Rules is specious. We remind Mulzer
that Section 1.17 of the Commission's Rules[^29] prohibits willful
material omissions in written statements to the Commission. We thus
reject as totally baseless Mulzer's argument that its history of
compliance warrants a reduction of the forfeiture.

7.  We also find no merit to Mulzer's second contention that its
    disclosure was voluntary.[^30] In its Petition, Mulzer argues that,
    because the Commission had not made a specific request for Form 489
    information, Mulzer had "voluntarily notified the FCC of its
    \[Mulzer's\] belated Form 489."[^31] Mulzer states that "the FCC did
    not inform Mulzer of any Form 489 violation, \[sic\] rather, it
    merely published a notice indicating that Mulzer's frequency had
    been deleted."[^32] Mulzer then concludes that "absent a specific
    agency request for Form 489 information, the licensee's provision of
    that information to the FCC at any time is obviously
    'voluntary.'"[^33]

8.  Mulzer's argument is flawed for two reasons. First, the terms and
    conditions of a grant impose upon a licensee an affirmative duty to
    notify the Commission that the licensee has completed construction
    and begun operation. *See* Section 22.142(b) of the Commission's
    Rules.[^34] There is thus nothing "voluntary" about a licensee's
    obligation to file FCC Form 489 within 15 days of the licensee's
    having completed construction and begun operations. The second flaw
    with Mulzer's "voluntary disclosure" argument stems from its
    apparent misunderstanding of the word "disclosure." Black's Law
    Dictionary defines the term "disclosure" as an "\[a\]ct of
    disclosing. Revelation; the impartation of that which is secret or
    not fully understood." [^35] The Bureau's release of a Public Notice
    terminating Mulzer's authorization on October 30, 1996, was
    predicated on Mulzer's failure to file Form 489. Mulzer's belated
    filing on December 5, 1996, could not, by definition, "reveal" or
    "impart" or "disclose" what the Commission already knew weeks before
    the December 5^th^ date: that Mulzer had failed to timely file
    Form 489. Mulzer's argument that its forfeiture should be reduced
    because Mulzer had "voluntarily disclosed" its violation is thus
    completely without merit.

**IV. Conclusion and Ordering Clauses**

9.  Based on the foregoing, we conclude that Mulzer has failed to
    present any evidence warranting reconsideration of our *Forfeiture*
    *Order* denying Mulzer's request to reduce or rescind its
    forfeiture.

10. ACCORDINGLY, IT IS ORDERED that the "Petition for Reconsideration of
    Forfeiture" filed by Mulzer Enterprises, Inc. on November 12, 1998,
    IS DENIED.

11. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the

Communications Act of 1934, as amended,[^36] and Section 1.80 of the
Commission's Rules,[^37] that Mulzer Enterprises, Inc. SHALL
FORFEIT[^38] to the United States the sum of two thousand dollars
(\$2,000) for violation of Section 22.142(b) of the Commission\'s
Rules.[^39]

12. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Mulzer\'s counsel,
    Frederick M. Joyce, Esq., Joyce and Jacobs, 1019 19th Street, N.W.,
    14th Floor, Washington, D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

Catherine W. Seidel

> Chief, Enforcement and Consumer Information Division Wireless
> Telecommunications Bureau

[^1]: On November 13, 1998, Mulzer supplemented its petition by
    submitting the original signed declaration of Jerry Paris, its
    Manager of radio operations.

[^2]: *See Mulzer Enterprises, Inc*., 13 FCC Rcd 20250 (Wireless Tel.
    Bur. 1998) (*Forfeiture Order*).

[^3]: 47 C.F.R. § 22.142(b). 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 Mulzer filed its FCC Form 489 on
    December 5, 1996.

[^4]: *See* License for Call Sign KNLM888.

[^5]: 47 C.F.R. § 22.511.

[^6]: 47 C.F.R. § 22.142(b).

[^7]: *See* FCC Form 489 filed December 5, 1996, by Mulzer.

[^8]: *Id*.

[^9]: *See* Public Notice No. NCS-97-05-A, October 30, 1996.

[^10]: 47 C.F.R. § 22.144. Section 22.144(b) of the Commission's Rules
    provides that an authorization shall automatically terminate if
    service is not commenced to subscribers by the required date (in
    this case, August 25, 1996).

[^11]: *See* FCC Form 489 filed December 5, 1996 by Mulzer.

[^12]: *See Mulzer Enterprises, Inc*., 12 FCC Rcd 10269 (Wireless Tel.
    Bur. 1997).

[^13]: *Id*.

[^14]: *Id*., 12 FCC Rcd at 10270.

[^15]: *See* "Petition for Reconsideration of Forfeiture" filed August
    18, 1997 by Mulzer ("Response").

[^16]: *Id*.

[^17]: *See Forfeiture Order*.

[^18]: *Id*., 13 FCC Rcd at 20252.

[^19]: *Id*.

[^20]: *Id*.

[^21]: *Id*.

[^22]: *See* Petition, p. 2.

[^23]: *See* Petition, Exhibit One.

[^24]: *Id*.

[^25]: *Id*.

[^26]: *See* Petition, p. 2.

[^27]: 47 C.F.R. § 1.80(f)(3).

[^28]: *See* Letter Dated April 18, 1996 from Frederick M. Joyce, Esq.
    to JoAnn Epps, Narrowband Branch, Wireless Telecommunications
    Bureau.

[^29]: 47 C.F.R. § 1.17.

[^30]: *See* Petition, pp. 2-3.

[^31]: *Id*.

[^32]: *Id*.

[^33]: *Id*.

[^34]: 47 C.F.R. § 22.142(b).

[^35]: *See Black's Law Dictionary* at 417 (5^th^ ed. 1979). *See also
    Webster's Dictionary*, which defines the term "disclose" as follows:
    "to expose to view; to make known or public (something previously
    held close or secret)." *Webster's New Collegiate Dictionary*, G. &
    C. Merriam Co. at 322 (1979).

[^36]: 47 U.S.C. § 503(b).

[^37]: 47 C.F.R. § 1.80.

[^38]: Payment 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.

[^39]: 47 C.F.R. § 22.142(b).