**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Notice of Apparent Liability for Forfeiture of )

)

**FRANK LEPERA** )

) File No. 920EF0021

Licensee of Paging and Radiotelephone )

Station KNLN886 )

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

**Adopted: April 6, 1999 Released: April 6, 1999**

By the Deputy 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
Frank Lepera ("Mr. Lepera"), licensee of Paging and Radiotelephone
Station KNLN886, Tyler, Texas. For the reasons that follow, we find that
Mr. Lepera failed to timely notify the Commission of the commencement of
service of Station KNLN886 at Tyler, Texas, in apparent violation of
Section 22.142(b) of the Commission\'s Rules.[^3] We conclude that Mr.
Lepera is apparently liable for a forfeiture in the amount of two
thousand dollars (\$2,000).

II\. Background

2.  On March 11, 1997, the Commission authorized Mr. Lepera to construct
Station KNLN886 at Tyler, Texas. That construction permit expired on
March 11, 1998. On April 21, 1998 (over 40 days after the deadline for
constructing the station), Mr. Lepera filed an FCC Form 489 notifying
the Commission that he had completed construction of, and commenced
service from, the Tyler site in a timely manner, but he provided no
specific date on which service was actually commenced.

3.  Section 22.142(b) of the Commission\'s Rules[^4] provided in
pertinent part: *\"Notification requirement*. Licensees must notify the
FCC (FCC Form 489) of commencement of service to subscribers . . . no
later than fifteen days after service begins.\"[^5] The Commission\'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.[^6]

**III. Discussion**

4.  Pursuant to Section 22.142(b) of the Commission's Rules,[^7] Mr.
Lepera was required to notify the Commission that he had completed
construction and commenced service by filing an FCC Form 489 within 15
days of its commencement of service. Mr. Lepera, however, did not file a
FCC Form 489 notifying the Commission of its completion of construction
and commencement of service until April 21, 1998. Mr. Lepera concedes
that he did not file a timely FCC Form 489 for Station KNLN886. Mr.
Lepera maintains, however, that the failure was due to administrative
inadvertence, and he filed the required notification as quickly as
possible upon learning of the oversight.

5\. Based on the information before us, we find that Mr. Lepera failed
to timely file an FCC Form 489 to notify the Commission of the
completion of construction and commencement of service at the Tyler,
Texas site. This failure constitutes an apparent violation of Section
22.142(b) of the Commission\'s Rules.[^8]

6\. In Mr. Lepera's response, he requested a waiver of Section 22.142(b)
of the Commission's Rules.[^9] According to Section 1.925(b)(3) of the
Commission's Rules,[^10] 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.

Mr. Lepera has not met his burden. Mr. Lepera's argument that he filed
the Form 489 late because of an inadvertent oversight does not meet any
of the requirements of Section 1.925(b)(3) of the Commission's
Rules.[^11] As a Commission licensee, Mr. Lepera has an affirmative
obligation to be informed and comply with the Commission's Rules. *See
J.B. Communications of Baltimore, Ltd.,* 31 RR 2d 1145 (1974). 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.

7.  The guidelines contained in the Commission\'s *Forfeiture Policy
Statement* specify a base forfeiture amount of \$3,000 for failure to
file required forms or information.[^12] The guidelines, however, permit
the Commission "to issue a higher or lower forfeiture than provided in
the guidelines." The Commission determined, in cases decided before the
adoption of the *Forfeiture Policy Statement*, that a base amount of
\$2,000 is justified when a licensee has failed to timely file a Form
489.[^13] We find, therefore, that a \$2,000 base amount for the
violation is appropriate here. Section 503(b) of the Communications
Act[^14] 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 factors as justice may require.\" We note
that Mr. Lepera has previously been cited for failure to file an FCC
Form 489 in a timely manner.[^15] Mr. Lepera paid that forfeiture on
September 4, 1998. In this case, taking into consideration all of the
factors required by Section 503(b)(2)(D) of the Act,[^16] including, but
not limited to, Mr. Lepera's prior violation, and his voluntary
disclosure of his current violation to the Commission, we believe a
\$2,000 forfeiture amount is appropriate here.

**IV. Conclusion and Ordering Clauses**

8\. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
1934, as amended,[^17] and Section 1.80 of the Commission\'s Rules,[^18]
Frank Lepera is hereby NOTIFIED of his APPARENT LIABILITY FOR FORFEITURE
in the amount of two thousand dollars (\$2,000) for violating Section
22.142(b) of the Commission\'s Rules.[^19]

9\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission\'s
Rules,[^20] that within thirty days of the release of this Notice, Mr.
Lepera SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.[^21]

10\. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
Certified Mail/ Return Receipt Requested, to Mr. Lepera, 811 Saint
Andrews Blvd., Lady Lake, FL 32159.

FEDERAL COMMUNICATIONS COMMISSION

Myron Peck

Deputy 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]: 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 Mr.
    Lepera filed his FCC Form 489 on April 21, 1998.

[^6]: *See Network Services, LLC,* 13 FCC Rcd 6688 (Wireless Tel. Bur.
    1998).

[^7]: 47 C.F.R. § 22.142(b).

[^8]: *See Courtesy Communications*, FCC 99-26 (released March 17,
    1999).

[^9]: *See* Mr. Lepera's Public Interest Statement & Request for De
    Minimus Waiver of Section 22.142(b) filed as Exhibit One to Mr.
    Lepera's FCC Form 489 on April 21, 1998.

[^10]: 47 C.F.R. § 1.925(b)(3).

[^11]: *Id.*

[^12]: *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).

[^13]: *See* *Mountaineer Paging*, 12 FCC Rcd 4727 (Wireless Tel. Bur.
    1997).

[^14]: 47 U.S.C. § 503(b).

[^15]: *Frank Lepera*, 13 FCC Rcd 15642 (Wireless Tel. Bur. 1998).

[^16]: 47 U.S.C. § 503(b)(2)(d).

[^17]: 47 U.S.C. § 503(b).

[^18]: 47 C.F.R. § 1.80.

[^19]: 47 C.F.R. § 22.142(b).

[^20]: 47 C.F.R. § 1.80.

[^21]: 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.