**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of )**

**)**

Colorado Callcomm, Inc. **)** File No. EB-00-TS-017

Trunked Business Station **)**

Denver, CO **)** NAL/Acct. No. 915DV0014

#### FORFEITURE ORDER

**Adopted: May 31, 2000 Released: June 1, 2000**

By the Chief, Enforcement Bureau:

#### I. INTRODUCTION

1\. In this Forfeiture Order ("Order"), we issue a monetary forfeiture
in the amount of ten thousand dollars (\$10,000) against Colorado
Callcomm, Inc. ("Callcomm")[^1] for willfully and repeatedly violating
Section 301 of the Communications Act of 1934, as amended ("Act").[^2]
The noted violations involve Callcomm's operation of an unlicensed radio
station near Plainview, Colorado.

2\. On September 22, 1999, the Commission's Denver, Colorado Field
Office ("Field Office") issued a Notice of Apparent Liability for
Forfeiture ("NAL") to Callcomm in the amount of eleven thousand dollars
(\$11,000) for the noted violations.[^3] Callcomm filed a response on
October 22, 1999.

**II. BACKGROUND**

3\. In late 1998, FCC agents from the Field Office and other Commission
field offices investigated complaints regarding noncompliant operation
and use of the 800 and 900 MHz frequency bands in the Denver, Colorado
area. On September 23 and 24, 1998, Field Office agents met with John
Gazzo, Callcomm's owner, and, on September 24, 1998,[^4] inspected the
900 MHz trunked radio system that he managed and serviced at Eldorado
Mountain, near Plainview, Jefferson County, Colorado ("Eldorado
Mountain").[^5]

4\. While inspecting the 900 MHz trunked radio system at the Eldorado
Mountain site, the FCC agents inspected a transmitter operating on
937.0944 MHz for which Mr. Gazzo was unable to provide any FCC
authorization. According to Mr. Gazzo, the 900 MHz trunked radio system,
of which the transmitter operating on 937.0944 MHz was a part, had been
in use at Eldorado Mountain since March of 1994.

5\. An FCC agent searched the Commission's wireless license database and
determined that the Commission had not authorized anyone to operate a
radio station on 937.0944 MHz or the nearest FCC specified channels of
937.0875 MHz and 937.1000 MHz from Eldorado Mountain.

6\. As noted above, on September 22, 1999, the Field Office issued an
\$11,000 NAL to Callcomm for willfully and repeatedly operating an
unlicensed radio station on 937.0944 MHz at the Eldorado Mountain site.
In its response to the NAL, Callcomm argues that, because it is not the
licensee of the transmitter operating on 937.0944 MHz, issuance of the
NAL without procedural notice is improper. Callcomm responds further
that either the FCC agents improperly measured the transmitter operating
on 937.0944 MHz, or the transmitter malfunctioned, which, in the case of
the latter event, means that Callcomm could not have "willfully"
violated Section 301 of the Act. Assuming that Callcomm is the licensee
and the FCC agents properly measured the transmitter operating on
937.0944 MHz, Callcomm contends that the Field Office should have cited
it for operating on the "wrong frequency assignment" and not for
unlicensed operation. In seeking mitigation of the NAL, Callcomm argues
that the \$11,000 forfeiture is not consistent with forfeiture amounts
previously assessed by the Commission for similar violations and that it
is entitled to a reduction of the forfeiture amount as a "small
business" subject to the Small Business Regulatory Enforcement Fairness
Act ("SBREFA").

**III. DISCUSSION**

7\. Callcomm initially responds to the NAL by stating that because it
"is not the licensee of the transmitter located on Eldorado
Mountain,"[^6] the Field Office should have followed the dictates of
Section 503(b)(5) of the Act and Section 1.80(d) of the Commission's
Rules ("Rules"), for non-Commission licensees, prior to issuing the NAL.
Specifically, Callcomm states that the Field Office should have given it
a citation of the violation charged, a reasonable opportunity for a
personal interview at the Field Office closest to Callcomm, and an
opportunity to cure the violation before it issued the NAL.[^7] However,
Callcomm overlooks the rest of Section 503(b)(5) of the Act and Section
1.80(d) of the Rules, which provide that the provisions relating to a
citation, an interview, and an opportunity to cure the violation shall
not apply "if the person involved is engaging in activities for which a
license, permit, certificate, or other authorization is required. . .
."[^8] Callcomm needed a Commission authorization to operate the
transmitter on 937.0944 MHz from Eldorado Mountain,[^9] therefore, a
citation, an interview, and an opportunity to cure the violation were
not required prior to the Field Office's issuance of the NAL. *Andrew R.
Yoder*, 9 FCC Rcd 6827, 6930 (1994).

8\. Callcomm next responds that the FCC agents improperly measured the
transmitter operating on 937.0944 MHz, which Callcomm claims the
manufacturer pre-programmed to access only Commission specified
channels.[^10] However, Callcomm provides no proof to refute the FCC
agents' findings, and ignores the fact that the FCC agents' measurements
correctly showed that several of the other transmitters in the 900 MHz
trunked radio system were operating on their Commission authorized
frequencies.

9\. Assuming that the transmitter malfunctioned, which Callcomm
discounts as unlikely, Callcomm contends that its operation on 937.0944
MHz could not have been "willful," as defined in Section 312(f) of the
Act,[^11] because "if the transmitter operated on the \[f\]requency, it
was without Callcomm's knowledge."[^12] Callcomm is mistaken on this
point. We find that Callcomm, as the manager and service provider of the
system, willfully operated a transmitter from the Eldorado Mountain site
since March of 1994 without Commission authorization. As the operator of
the system, it should have been aware of all frequencies associated with
the system, and possessed the authorization for each of the system's
associated frequencies. Whether the transmitter malfunctioned and
operated on 937.0944 MHz *or any other frequency* is only relevant to
the extent that Callcomm held no Commission authorization to operate the
transmitter. In other words, had the transmitter been operating on a
Commission specified channel, *see* 47 C.F.R. § 90.613, Callcomm would
still be liable unless it could produce a Commission authorization for
the transmitter or point to a person or entity licensed to use the
transmitter. Moreover, Callcomm's failure to comply is also
repeated.[^13]

10\. Callcomm's last response to the NAL is that the Field Office
improperly charged it with violating Section 301 of the Act without
showing that it (or the actual licensee, if one existed) held no
authorization for operating the 900 MHz trunked radio system at the
Eldorado Mountain site. The proper charge, Callcomm alleges, is
operating transmitting equipment on the wrong frequency assignment,
which would have merited a \$4,000 base forfeiture amount. However,
without Callcomm's submission of a license or other authorization for
the transmitter operating on 937.0944 MHz, we must conclude that
Callcomm was operating an unlicensed radio station.

11\. Although Callcomm asserts that the Field Office erred in its
issuance of the NAL, it also seeks a mitigation of the forfeiture
amount. In support of mitigation, Callcomm cites other forfeiture cases
involving Section 301 of the Act in support of its position that the
forfeiture amount here departs from precedent by exceeding the amount
levied in more egregious cases. Contrary to the base amount specified in
the NAL (\$11,000), the base forfeiture amount for operation without an
instrument of authorization for the service is \$10,000.[^14]
Accordingly, we will reduce the forfeiture amount to \$10,000.

12\. Callcomm does not invoke any of the Commission's specified downward
adjustment criteria for Section 503 forfeitures (e.g., minor violation,
good faith or voluntary disclosure, history of overall compliance, and
inability to pay) and presents no analysis related to the same for our
consideration. Instead, Callcomm directs us to three other NAL
proceedings involving Section 301 of the Act in which the former
Compliance and Information Bureau proposed lower forfeitures than the
base amount, *Angel N. Padilla d/b/a Mega Page*, 14 FCC Rcd 4518 (Compl.
& Inf. Bur. 1999) (\$6,000 forfeiture); *Domingo Del Valle*, 14 FCC Rcd
5464 (Compl. & Inf. Bur. 1999) (\$6,000 forfeiture); and *Jeffrey G.
Guss*, 13 FCC Rcd 20,368 (Compl. & Inf. Bur. 1998) (\$2,500 forfeiture).
Leaving aside the correctness of those decisions, the Commission's base
forfeiture amount for operation without a license is \$10,000. Based on
the nature of Callcomm's willful and repeated violation of Section 301
of the Act in this case, we find that the \$10,000 forfeiture amount is
consistent with Section 503(b)(2)(D) of the Act and the Commission's
guidelines set forth in its *Forfeiture Policy Statement.* Moreover, as
noted above, Callcomm makes no claim, and offers no proof, as to how any
of the Commission's specified downward adjustment criteria for Section
503 forfeitures apply to the facts of this case.

13\. Callcomm avers that, under SBREFA, it qualifies as a small business
because it is a "start-up firm, independently owned and operated, and is
not dominant in its field of operation."[^15] Callcomm further argues
that its qualification as a small business entity requires the
Commission, pursuant to SBREFA, to "provide for reduction or waiver of
penalties. . . ." The Commission, through its *Forfeiture Policy
Statement*, has already considered its obligations under SBREFA and
enunciated the appropriate guidance for upward and downward adjustments
to forfeitures, as provided by SBREFA. *See* *Jerry Szoka*, 14 FCC Rcd
9857, 9866 (1999), *recon. denied* 14 FCC Rcd 20147 (1999). Using this
guidance, we do not find that Callcomm is entitled to a further
reduction or cancellation of the forfeiture amount.

**IV. ORDERING CLAUSES**

14\. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
the Act,[^16] and Sections 0.111, 0.311, and 1.80(f)(4) of the
Rules,[^17] Colorado Callcomm, Inc. **IS LIABLE FOR A MONETARY
FORFEITURE** in the amount of ten thousand dollars (\$10,000) for
willfully and repeatedly violating Section 301 of the Act.

15\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Rules,[^18] 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.[^19] Payment may be made by
credit card through the Commission\'s Credit and Debt Management Center
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 NAL/Acct. No. 915DV0014 referenced above.
Requests for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.[^20]

16\. **IT IS FURTHER ORDERED** that, a copy of this Order shall be sent
by Certified Mail Return Receipt Requested to Russell H. Fox, Esq. and
Russ Taylor, Esq., Gardner, Carton & Douglas, 1301 K Street, N.W., East
Tower, Washington D.C. 20005-3317, and Colorado Callcomm, Inc., 7000
North Broadway, Building 2, Suite 203, Denver, Colorado 80221.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: The Commission's Denver, Colorado Field Office issued the Notice
    of Liability for Forfeiture ("NAL") to "Callcom, Inc," to which
    "Colorado Callcomm, Inc." responded. Opposition to NAL at 1.

[^2]: 47 U.S.C. § 301.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    915DV0014 (Compl. & Inf. Bur., Denver, Colo. Field Office, rel.
    Sept. 22, 1999).

[^4]: In the NAL, the Field Office mistakenly refers to the inspection
    date as September 23, 1998.

[^5]: The trunked radio system inspected was WPDX937.

[^6]: Opposition to the NAL at 2.

[^7]: *See* 47 U.S.C. § 503(b)(5); 47 C.F.R. § 1.80(d).

[^8]: *Id.*

[^9]:

[^10]: The closest authorized channels to 937.0944 MHz are 937.0875 MHz
    and 937.1000 MHz. 47 C.F.R. § 90.613.

[^11]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f), which applies
    to Section 503(b) of the Act, provides that "\[t\]he term 'willful',
    when used with reference to the commission or omission of any act,
    means the conscious and deliberate commission or omission of such
    act, irrespective of any intent to violate any provision of this Act
    or any rule or regulation of the Commission authorized by this Act
    or by a treaty ratified by the United States." *See Southern
    California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^12]: Opposition to NAL at 3 n.5.

[^13]: *See* Section 503(b)(1)(B), 47 U.S.C. § 503(b)(1)(B); *see also*
    *Hale Broadcasting Corp.*, 79 FCC 2d 169, 171 (1980).

[^14]: *See The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Forfeiture Policy Statement*"), 12 FCC Rcd 17087,
    17113 (1997), *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b), note to paragraph b(4), *Section I.---Base Amounts for
    Section 503 Forfeitures*.

[^15]: *See* 15 U.S.C. § 632(a)(1).

[^16]: 47 U.S.C. § 503(b).

[^17]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^18]: 47 C.F.R. § 1.80.

[^19]: 47 U.S.C. § 504(a).

[^20]: *See* 47 C.F.R. § 1.1914.