Before the

**Federal Communications Commission**

Washington, D.C. 20554

In the Matter of )

)

Notice of Apparent Liability for Forfeiture of )

)

**PAGER ONE OF FLORIDA, INC.** )

) File No. 920EF0032

Licensee of Paging and Radiotelephone Stations KNLN217, )

Tulsa, Oklahoma; and KNLM514, Ogden, Utah )

)

######### NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: May 13, 1999 Released: May 14, 1999**

By the 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
Pager One of Florida, Inc. (\"Pager One\"), licensee of Paging and
Radiotelephone Stations KNLN217 in Tulsa, Oklahoma; and KNLM514 in
Ogden, Utah. As discussed below, we find that Pager One failed to timely
notify the Commission of the commencement of service of Stations KNLN217
and KNLM514, in apparent violation of Section 22.142(b) of the
Commission\'s Rules.[^3] We conclude that Pager One is apparently liable
for a forfeiture in the amount of four thousand dollars (\$4,000).

**II. Background**

2.  The Commission authorized Pager One to construct Station KNLN217 on
January 19, 1996, at Tulsa, Oklahoma, for frequency 931.6625 MHz. The
Commission authorized Pager One to construct Station KNLM514 on February
9, 1996 at Ogden, Utah, for frequency 931.6625 MHz. The authorizations
required that Pager One complete construction and commence service
within one year of the date of the authorizations, January 19, 1997, and
February 9, 1997, respectively.

3\. On June 22, 1998, Pager One filed two FCC Forms 489 in which it
notified the Commission that it had timely completed construction of,
and commenced service from, Stations KNLN217 and KNLM514 at both
locations on 931.6625 MHz. Pager One conceded that it had not notified
the Commission on time, attributed its dereliction to administrative
oversight, and requested a waiver of Section 22.142(b) of the
Commission\'s rules.[^4] Pager One did not provide a specific date on
which service actually commenced.

**III. Discussion**

4.  Section 22.142(b) of the Commission\'s Rules[^5] provided in
pertinent part: *\"Notification Requirement*. Licensees must notify the
FCC (using FCC Form 489) of commencement of service to subscribers . . .
no later than fifteen days after service begins.\" [^6] 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. The Bureau\'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.[^7]

5.  Pursuant to Section 22.142(b), Pager One was required to notify the
Commission that it had completed construction and commenced service by
filing an FCC Form 489 within 15 days of commencement of service. Pager
One, however, did not file any Forms 489 notifying the Commission of its
completion of construction and commencement of service of Stations
KNLN217 and KNLM514 until June 22, 1998, approximately five months after
the deadline for doing so for Station KNLN217 and some four months after
the deadline for Station KNLM514. Pager One admits that it did not
timely file any FCC Forms 489 for these stations due to administrative
oversight.[^8] The Commission has stated, however, that its licensees
have an affirmative obligation to be informed and comply with the
Commission's Rules.[^9] Consequently, we find no basis for excusing
Pager One's apparent violation of Section 22.142(b).[^10]

6\. We also find no basis for waiving Section 22.142(b) of the
Commission\'s Rules[^11] in this instance. According to Section
1.925(b)(3) of the Commission\'s Rules,[^12] 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.

Pager One has not met its burden as to either criterion. Pager One does
not demonstrate how the underlying purpose of Section 22.142(b)[^13]
would be frustrated in the absence of a waiver. It does not show how
grant of a waiver would serve the public interest. Finally it does not
identify any unique or unusual circumstances that would justify a
waiver. Clearly, mere inadvertent oversight does not provide a basis for
waiving Section 22.142(b) of the Commission's Rules.[^14]

7.  The Bureau has determined that a base forfeiture amount of \$2,000
for each violation is justified when a licensee has failed to timely
file an FCC Form 489.[^15] Before a forfeiture amount is established,
however, Section 503(b)(2)(D) of the Act requires the Bureau 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 other such factors as justice may
require.\"[^16] We note that Pager One was previously assessed
forfeitures for failing to file FCC Forms 489 in a timely manner.[^17]
Pager One partially

paid the aforementioned forfeitures on April 5, 1999.[^18] In the
instant case, taking these factors into consideration, including, but
not limited to, Pager One\'s voluntary disclosure of these violations to
the Commission, and Pager One\'s commission of similar offenses in
1998,[^19] we believe it is appropriate to use the base amount of
\$2,000 for each of the two violations, for a total of \$4,000.[^20]

**IV. Ordering Clauses**

8\. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
1934, as amended,[^21] and Section 1.80 of the Commission\'s Rules,[^22]
Pager One is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of four thousand dollars (\$4,000) for repeatedly violating
Section 22.142(b) of the Commission\'s Rules.[^23]

9\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission\'s
Rules,[^24] that within thirty days of the release of this Notice, Pager
One SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.[^25]

10\. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
Certified Mail/ Return Receipt Requested, to Frederick M. Joyce, Esq.,
Joyce & Jacobs Attorneys at Law, LLP, 1019 19th Street, N.W., Fourteenth
Floor, Washington, DC 20036; and to Pager One of Florida, Inc., 5950
Okeechobee Boulevard, West Palm Beach, FL 33417.

**FEDERAL COMMUNICATIONS COMMISSION**

Catherine W. Seidel

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). *See* Request for Reconsideration and
    Reinstatement attached to each of the two FCC Forms 489 filed by
    Pager One on June 22, 1998. The Request for Reconsideration and
    Reinstatement relates to the Public Notice of May 21, 1998 which
    terminated Pager One\'s authorizations.

[^5]: 47 C.F.R. § 22.142(b).

[^6]: 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
    Pager One filed its FCC Forms 489 on June 22, 1998.

[^7]: *See Network Services, LLC,* 13 FCC Rcd 6688 (Wireless Tel. Bur.
    1998).

[^8]: *See* Request for Reconsideration and Reinstatement attached to
    each of the two FCC Forms 489 filed by Pager One on June 22, 1998.
    The Request for Reconsideration and Reinstatement relates to the
    Public Notice of May 21, 1998 which terminated Pager One\'s
    authorizations.

[^9]: See *J.B. Communications of Baltimore, Ltd.,* 31 RR 2d 1145
    (1974).

[^10]: 47 C.F.R. § 22.142(b).

[^11]: 47 C.F.R. § 22.142(b).

[^12]: 47 C.F.R. § 1.925(b)(3)

[^13]: 47 C.F.R. § 22.142(b).

[^14]: 47 C.F.R. § 22.142(b).

[^15]: *See, e.g., Mountaineer Paging*, 12 FCC Rcd 4727 (Wireless Tel.
    Bur. 1997).

[^16]: 47 U.S.C. § 503(b)(2)(D).

[^17]: *See, In the Matter of Pager One*, *Inc.,*13 FCC Rcd 20296
    (1998); *In the Matter of Pager One*, *Inc.,* 13 FCC Rcd 20299
    (1998); and *In the Matter of Pager One*, *Inc.,* 13 FCC Rcd. 20302
    (1998).

[^18]: Letter dated April 5, 1999, from Frederick M. Joyce, Esq.,
    Counsel for Pager One, to Katherine Power, Esq., Wireless
    Telecommunications Bureau*,* stating "Pager One is experiencing
    financial difficulties . . . but Pager One will make additional
    partial payments until the NALs are paid in full."

[^19]: *Id.*

[^20]: Since October, 1997, the Commission has followed the policy
    articulated in *The Commission\'s Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines (\"FPS\"),* 12 FCC Rcd 17087 (1997). There, the base
    forfeiture amount listed for failure to file required forms is
    \$3,000. The *FPS*, however, states the Commission \"will use the
    case-by-case approach for violations arising from facts that
    occurred before the effective date of this order but where the
    Commission will commence forfeiture action after the effective
    date.\" 12 FCC Rcd 17087, 17093 (1997).

[^21]: 47 U.S.C. § 503(b).

[^22]: 47 C.F.R. § 1.80.

[^23]: 47 C.F.R. § 22.142(b).

[^24]: 47 C.F.R. § 1.80.

[^25]: 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