Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-05-LA-071       |
|                                  |   |                                 |
| ESP Leasing Corporation          | ) | NAL/Acct. No.: 200632900006     |
|                                  |   |                                 |
| Brookfield, Illinois             | ) | FRN: 0004161469                 |
|                                  |   |                                 |
| Operator of Unlicensed Land      | ) |                                 |
| Mobile                           |   |                                 |
|                                  | ) |                                 |
| Transmitter Near Las Vegas,      |   |                                 |
| Nevada                           | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: December 26, 2006 Released: December 28, 2006**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of six thousand dollars (\$6,000) to ESP
    Leasing Corporation ("ESP"), for willful and repeated violations of
    Section 301 of the Communications Act of 1934, as amended, ("the
    Act"). [^1] On February 9, 2006, the Los Angeles Office issued a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$10,000 to ESP after determining that ESP operated an
    unlicensed land mobile transmitter on 856.3625 MHz near Las Vegas,
    Nevada. In this *Order,* we consider ESP's requests that the
    forfeiture amount be reduced given the nature of the violation, and
    ESP's record of compliance as a Commission licensee.

# II. BACKGROUND

2.  On February 25, 2005, while conducting a routine audit of installed
    radio equipment on Black Mountain, in Las Vegas, Nevada, an agent of
    the Enforcement Bureau's Los Angeles Office discovered six, 800 MHz,
    land-mobile transmitters installed in rented space in one of the
    mountaintop buildings. The callsign found on the equipment was
    WPOX419. Six frequencies were listed on the six transmitters,
    including 856.3625 MHz, and one of the transmitters was in
    operation.[^2] The name "ESP Leasing" and a telephone number were
    also displayed on the transmitters. The agent noted that, for the
    Black Mountain location, no record for the transmitters could be
    found in the Commission's database of licensed transmitters.

3.  On March 2, 2005, the Los Angeles agent researched the Commission's
    records for the callsign and frequency information displayed on the
    transmitters and determined that the transmitters were associated
    with callsigns WPOX419 and WPOX417. The licensed location for these
    stations, however, is Mt. Potosi, Nevada, a site approximately 20
    miles from Black Mountain.[^3] The Commission's records showed that
    ESP was the licensee of WPOX419 and WPOX417, until December 14,
    2004, when the licenses and transmitters were assigned to AIRPEAK
    Communications, Inc.[^4] The owner of the rented building on Black
    Mountain reported that ESP had been paying the rent for the
    transmitters' space since April 1, 2000.

4.  On April 27, 2005, Los Angeles agents again visited the Las Vegas,
    Nevada area. While monitoring the frequencies of the transmitters
    which had been found on Black Mountain, the agents heard significant
    traffic on 856.3625 MHz, without callsign identification. The agents
    used direction finding techniques to locate the source of the
    signals as Black Mountain. The agents then contacted a
    representative of AIRPEAK, who advised that AIRPEAK had recently
    acquired the WPOX417 and WPOX419 licenses from ESP but had not yet
    constructed new transmitters on Mt. Potosi.[^5] The agents then
    contacted ESP, and a representative confirmed that the current
    operations on 856.3625 MHz from Black Mountain were from ESP's
    transmitter, and that the operations had been on-going for many
    months. When agents asked by what authority the transmitter was
    being operated, the ESP representative asked for an opportunity to
    research ESP's records. On April 28, 2005 the Commission's agents
    again monitored unidentified traffic on 856.3625 MHz, and again
    confirmed with direction finding techniques that Black Mountain was
    the source. Later that day, the representative from ESP contacted
    the agents and advised that several transmitters had been mistakenly
    located on Black Mountain, and that ESP would cease operations with
    them as soon as possible.

5.  On August 25, 2005, the Los Angeles Office issued a Letter of
    Inquiry ("LOI") to ESP concerning ESP's ownership and operation of
    the unlicensed transmitters on Black Mountain. ESP sent a response
    ("Response") to the LOI on September 9, 2005. In its Response, ESP
    stated that it had mistakenly relocated the six transmitters to
    Black Mountain while it was still the licensee, and had subsequently
    assigned its license for the frequencies, but had been operating the
    transmitters from Black Mountain since approximately September 2004.
    ESP also stated that it ceased operation of the transmitters on
    April 28, 2005.

6.  On February 9, 2006, the Los Angeles Office issued a *NAL* in the
    amount of \$10,000 to ESP.[^6] ESP filed a response to the *NAL* on
    March 7, 2006 ("*Response*"). In the *NAL,* the Los Angeles Office
    determined that ESP apparently willfully and repeatedly violated
    Section 301 of the Act[^7] by operating an unlicensed land mobile
    transmitter on 856.3625 MHz near Las Vegas, Nevada. In its
    *Response*, ESP does not dispute the facts in the *NAL,* but
    requests a reduction in the forfeiture amount based on the fact that
    ESP at one point in time had a license for 856.3625 MHz at another
    site in the same Las Vegas market; that the operation at the
    unauthorized location caused no known interference; and because of
    ESP's history of FCC rule compliance.

# III. DISCUSSION

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^8] Section 1.80 of the
    Rules,[^9] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
    303 (1999) ("*Forfeiture Policy Statement*"). In examining ESP's
    response, Section 503(b) of the Act requires that the Commission
    take into account 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
    other such matters as justice may require.[^10]

8.  Section 301 of the Act requires that no person shall use or operate
    any apparatus for the transmission of energy or communications or
    signals by radio within the United States except under and in
    accordance with the Act and with a license. While it still held
    licenses WPOX419 and WPOX417, ESP relocated its transmitters without
    authority to Black Mountain, Nevada, and, from December 15, 2004, to
    April 28, 2005, ESP operated a transmitter on Black Mountain without
    a license.

9.  ESP does not dispute the facts detailed in the *NAL.* Instead, it
    requests that the forfeiture amount be reduced because ESP
    previously held a license for operation on 856.3625 MHz at a
    different location but in the same market where the violation took
    place. We note that ESP's authorization to operate on 856.3625 MHz
    was assigned to AIRPEAK on December 14, 2004, and, therefore, ESP
    was no longer authorized to operate on that frequency. ESP did not
    have an authorization to operate on 856.3625 MHz beginning December
    15, 2004, and it did not stop its unauthorized operation until
    notified by the Los Angeles Office on April 27, 2005. ESP
    acknowledged in its response to the Los Angeles Office's LOI that
    while it still held the authorizations for WPOX419 and WPOX417, in
    September 2004, it relocated the transmitters for those stations
    without authority. As noted in the NAL, that unauthorized relocation
    in September 2004 violated Section 1.903(a) of the Rules.[^11] We do
    not agree that we should reduce the proposed forfeiture to \$4,000
    because, as ESP opines, "the violation might properly be
    characterized as operation at an unauthorized location, with a base
    forfeiture of \$4,000 . . . ."[^12] To do so ignores the fact that
    ESP had no authorization to operate. However, we do find that that
    ESP's unlicensed operation is not analogous to the "intentional
    unlicensed operation of a 'pirate' station operator who operates in
    flagrant violation of Commission Rules."[^13] We therefore reduce
    ESP's forfeiture amount to \$8,000.

10. ESP also alleges that a downward reduction is warranted because the
    unlicensed operation did not cause interference. We disagree. An
    absence of interference during its unlicensed operation does not
    entitle ESP to a reduction of the forfeiture amount under the
    Commission's downward adjustment criteria for forfeitures.[^14]

11. ESP also requests that the forfeiture amount be reduced because it
    has a history of compliance as a Commission licensee. We have
    reviewed our records and we find no instances of ESP having received
    a forfeiture or violation notice. Consequently, we reduce ESP's
    forfeiture amount by another \$2,000.

12. We have examined ESP's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that ESP
    willfully and repeatedly violated Section 301 of the Act. [^15]
    Considering the entire record and the factors listed above, we find
    that reduction of the proposed forfeiture is warranted, given the
    circumstances surrounding ESP's unauthorized operation and its
    compliance record with the Commission's Rules. Accordingly, the
    forfeiture amount is reduced from ten thousand dollars (\$10,000) to
    six thousand dollars (\$6,000).

# IV. ORDERING CLAUSES

13. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, ESP Leasing
    Corporation **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    \$6,000 for willfully and repeatedly violating Section 301 of the
    Act.[^16]

14. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *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.[^17] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission.  The payment
    must include the NAL/Acct. No. and FRN No. referenced above. 
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911- 6106. Requests for full payment under an installment
    plan should be sent to: Associate Managing Director -- Financial
    Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
    20554.[^18]

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    ESP Leasing Corporation at its address of record, and Elizabeth R.
    Sachs, Esquire, Lukas, Nace, Gutierrez & Sachs, Chartered, its
    counsel of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: The other frequencies listed were 857.3625 MHz, 858.3625 MHz,
    859.3625 MHz, 860.3625 MHz and 859.6375 MHz.

[^3]: The callsign WPOX419 was listed in the Commission's Universal
    Licensing Service ("ULS") database as licensed to AIRPEAK
    Communications, LLC, which authorized frequencies 858.3625 MHz,
    859.3625 MHz and 860.3625 MHz on Mt. Potosi. Another AIRPEAK
    license, WPOX417, authorized 856.3625 MHz and 857.3525 MHz, also at
    Mt Potosi.

[^4]: See Application Nos. 0001888410 and 0001970542.

[^5]: Prior to the license assignment, ESP executed, and filed with the
    Commission, a "De Facto Transfer Lease" of the licenses to AIRPEAK
    which commenced on October 8, 2004 and expired on April 6, 2005.

[^6]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632900006 (Enf. Bur., Western Region, Los Angeles Office,
    released February 9, 2006).

[^7]: 47 U.S.C. § 301.

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. § 1.80.

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: 47 C.F.R. § 1.903(a).

[^12]: *Response* at 2.

[^13]: *Gateway Security Systems, Inc.,* 18 FCC Rcd 24026, 24029 (EB
    2003).

[^14]: 47 C.F.R. § 1.80(b), note to paragraph (b)(4), *Section II.
    Adjustment Criteria for Section 503 Forfeitures*. *See Page-Comm*,
    16 FCC Rcd 6842, 6845 (EB 2001). *See also* *New York Radio
    Service*, 19 FCC Rcd 10704 (EB 2004).

[^15]: 47 U.S.C. § 301.

[^16]: 47 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.