**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

) **NAL/Acct. No.** 915ST0001

Supervalu, Inc. )

Minneapolis, Minnesota )

# MEMORANDUM OPINION AND ORDER

**Adopted: February 8, 2000 Released: February 9, 2000**

By the Chief, Enforcement Bureau:

1\. In this Order, we reaffirm a monetary forfeiture of \$11,000 issued
by the former Compliance and Information Bureau to Supervalu, Inc. for
operating an unlicensed radio facility even after it was directed to
cease operations. The Notice of Apparent Liability ("NAL") in this case
was issued October 8, 1998.[^1] The Forfeiture Order was issued January
19, 1999.[^2] Supervalu has filed a Motion to Set Aside the *Forfeiture
Order*. For purposes of review, Supervalu's Motion will be considered as
a petition for reconsideration under Section 1.106 of the Commission\'s
Rules ("the Rules"), 47 C.F.R. § 1.106. For the reasons discussed below,
we deny the petition for reconsideration.

**BACKGROUND**

2\. On September 9, 1998, the Commission\'s Seattle, Washington Field
Office investigated a complaint of interference to a private land mobile
repeater station located near Enumclaw, Washington, which uses an input
frequency of 469.950 MHz. The source of the interference was determined
to be located at Supervalu\'s distribution center, 1525 East D Street,
Tacoma, Washington, on nominal frequency 469.9625 MHz. An inspection of
Supervalu\'s inventory control equipment revealed that the operating
bandwidth exceeded that of a standard voice channel and was sufficient
to cause adjacent channel interference. During the inspection,
Supervalu's employees could not produce a valid FCC radio license or any
other authorization for Supervalu's transmissions on 469.9625 MHz.[^3]

3\. On September 10, 1998, a letter was sent via facsimile to the
attention of Brad Colbo, the person responsible for the radio equipment
at Supervalu\'s Tacoma distribution center, informing Supervalu that the
unlicensed operation on 469.9625 MHz violated Section 301 of the
Communications Act of 1934, as amended ("the Act"), 47 U.S.C. § 301, and
instructing Supervalu to discontinue the unlicensed operation
immediately. That same day, Mr. Colbo called the Seattle Field Office to
discuss the matter. During the conversation, the District Director of
the Seattle Field Office agreed to send information to Supervalu's
corporate office regarding the application process for Special Temporary
Authority ("STA") to operate its radio transmitter. The requested
information was sent via facsimile to the attention of Steve Pederson at
Supervalu's corporate office in Minneapolis, Minnesota that same week.

4\. On September 18, 1998, the complainant notified the Seattle Field
office that the interference was still occurring. On September 21, 22,
and 23, 1998, Supervalu contacted the Seattle Field Office and stated
that it was working on the interference problem. Supervalu was again
advised that fines might be assessed if it did not cease operating.
Supervalu was urged to apply for a license or STA to operate on 469.9625
MHz. The STA application information was again sent via facsimile to
Supervalu\'s corporate office on September 23, 1998.

5\. On September 23, 1998, Supervalu submitted an application for an STA
via facsimile to the Licensing Division of the FCC's Wireless
Telecommunications Bureau ("WTB") in Gettysburg, Pennsylvania.
Subsequently, on September 25, 1998, an agent from the Seattle Field
Office conducted a follow-up investigation and determined that Supervalu
was still transmitting on 469.9625 MHz from 1525 East D Street in
Tacoma, Washington without a valid station license or other authority.
Shortly thereafter, on October 1, 1998, the complainant confirmed that
the radio interference reported previously was still occurring.

6\. On October 2, 1998, Supervalu contacted the Seattle Field Office to
ascertain the status of its STA request. As a courtesy, the Seattle
Field Office contacted the WTB in Gettysburg to determine the status of
the request, and subsequently left a message with Supervalu's corporate
office, advising it that the STA request had been denied. The WTB also
sent a copy of the STA denial letter, which had previously been mailed
to Supervalu, via facsimile to the company's corporate office in
Minnesota.

7\. On October 5, 1998, an agent from the Seattle Field Office conducted
a follow-up investigation and determined that Supervalu was still
transmitting on 469.9625 MHz from 1525 East D Street in Tacoma,
Washington without a valid station license or other authority. A review
of the Commission\'s records revealed that no authorization had been
granted for this station.

8\. Based on the events described above, on October 8, 1998, the Seattle
Field Office issued an NAL to Supervalu in the amount of \$11,000 for
willful and repeated violations of Section 301 of the Act. The Bureau
affirmed the amount by the *Forfeiture Order* issued on January 19,
1999.

**DISCUSSION**

9\. In seeking reconsideration of this matter, Supervalu asserts (1)
that it "did possess a valid FCC authorization" to use the frequency at
issue, but admits that the license "was inadvertently permitted to
expire prior to" the inspection on September 9, 1998; (2) that it "took
all reasonable and necessary steps to bring its system into compliance,"
and "followed in good faith the advice provided by the \[Commission's\]
staff," but claims that the WTB "impeded Supervalu's compliance" with
the Commission's Rules by denying the STA; (3) that the reasons relied
upon by WTB in denying Supervalu's STA request were inapplicable to
Supervalu, due to an exception found in Section 90.159 of the Rules, 47
C.F.R. § 90.159; (4) that this matter did not involve intentional or
egregious conduct that would justify imposition of "the maximum
statutorily permitted forfeiture for Supervalu's first alleged
violation;" and (5) that the Commission should consider the
reasonableness of punishing Supervalu for using radio communications to
protect the safety of the public," as it claims that the radios at issue
were used by Supervalu to control inventory and protect food from
spoilage.

10\. We are not persuaded by Supervalu\'s arguments. As an initial
matter, the claim that Supervalu "did possess a valid FCC authorization
to utilize the frequency at issue, but that license was inadvertently
permitted to expire prior to the ... inspection" is offered without
evidentiary support that such an authorization existed. As noted above,
a review of the Commission\'s records revealed that no authorization had
been granted for the station at issue. During the inspection on
September 9, 1999, the Seattle agent did note that a radio license for a
different frequency and mode of operation was posted at the site.
However, that license, which cannot be construed as authorization for
the transmissions in question, was not even issued to Supervalu, but to
its previous owner, West Coast Grocery.

11\. Furthermore, the assertions that Supervalu took all reasonable and
necessary steps to comply and followed the Seattle Field Office's advice
"in good faith" but WTB "impeded Supervalu's compliance" are not true.
The Seattle Field Office repeatedly warned Supervalu that it could be
fined if it continued to operate the transmitter without a valid
license, and advised Supervalu to discontinue its unlicensed radio
transmissions immediately. Supervalu chose to ignore this advice. In
light of the repeated warnings to discontinue its unlicensed operations
immediately, Supervalu could not have reasonably believed it could
continue to operate the radio facility based on the Seattle Field
Office's suggestion that Supervalu file a request for an STA.

12\. We further see no basis for mitigation in Supervalu's claim that
denial of its request for an STA was in error. If Supervalu believed
that WTB was wrong in denying its request for an STA, its arguments to
that effect should have been raised with WTB at the time the STA was
denied. The WTB had sole authority to grant or deny the request, subject
to review at that time by the Commission, and we are therefore not in a
position to opine on the validity of WTB's denial of the STA. In any
case, Supervalu continued to operate the radios without an STA, even
after it had been informed that an STA was required and that its request
for the STA had been denied.

13\. Finally, we turn to Supervalu's claims of mitigating circumstances
to be taken into account pursuant to Section 503(b)(2)(D) of the Act.
Supervalu claims that the radios at issue were used to control inventory
and protect food from spoilage, and implies that it would therefore be
unreasonable for the Commission to punish Supervalu for "using radio
communications to protect the safety of the public." Supervalu also
contends that the \$11,000 forfeiture amount is inappropriate because
the conduct at issue was not egregious or intentional and that this
incident was Supervalu's first alleged violation. These arguments are
also unpersuasive. Supervalu is not being fined for its efforts to
protect the public safety, but rather for using radio equipment without
a license. Supervalu also fails to comprehend that the conduct at issue
amounts to repeated, willful violations of the Act. Section 312(f)(2) of
the Act provides, in pertinent part: "The term 'repeated,' when used
with reference to the commission or omission of any act, means the
commission or omission of such act *more than once*\..." 47 U.S.C.
§ 312(f)(2). (Emphasis added.) On three separate occasions, the Seattle
Field Office received complaints of interference to licensed radio
transmissions, which the Field Office determined were caused by
Supervalu's unlicensed and unauthorized operation of a radio
transmitter. Furthermore, Section 312(f)(1) of the Act provides: "the
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."[^4] Supervalu was warned
several times, both in writing and by telephone, that continued
operation of its transmitter without a license could result in a fine,
but still proceeded to operate the transmitter without valid
authorization. Its violation was thus not only wilfull, but intentional.

**ORDERING CLAUSES**

14\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 1.106 of
the Rules, Supervalu's petition for reconsideration of the Forfeiture
Order, NAL No. 915ST0001, issued on January 19, 1999, **IS DENIED**.

15\. **IT IS FURTHER ORDERED** that, pursuant to Section 503(b) of the
Act and Sections 0.111, 0.311, and 1.80 of the Commission's Rules, 47
C.F.R. §§ 0.111, 0.311, and 1.80, Supervalu, Inc. must pay the amount of
\$11,000 within thirty (30) days of the release date of this Order.
Payment may be made by check or money order, drawn on an U.S. financial
institution, payable to the Federal Communications Commission. Payment
may also be made by credit card with the appropriate documentation.[^5]
The remittance should be marked "NAL Acct. No. 915ST0001" and mailed to
the following address:

> Federal Communications Commission
>
> P.O. Box 73482
>
> Chicago, Illinois 60673-7482

Forfeiture penalties not paid within 30 days will be referred to the
U.S. Attorney for recovery in a civil suit. 47 U.S.C. § 504(a).

16\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
certified mail, return receipt requested, to Supervalu's counsel of
record, Michael L. Higgs, Jr., Schwaninger & Associates, 1835 K Street
N.W., Suite 650, Washington, D.C. 20006, with a copy to Supervalu,
Inc.'s corporate office in Minneapolis, Minnesota.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: NAL (FCC Seattle Field Office, released October 8, 1998).

[^2]: ^2^ 14 FCC Rcd 856 (Compl. & Inf. Bur., 1999). Although counsel
    for Supervalu had submitted to the Commission a timely response to
    the October 8, 1998 NAL, the staff did not actually receive that
    response until April 15, 1999. The January 19, 1999 Forfeiture
    Order, therefore, was issued in the mistaken belief that Supervalu
    was in default. The issues addressed in this Order are those raised
    by Supervalu's response to the NAL.

[^3]: A radio license for a different frequency and mode of operation,
    issued to Supervalu's previous owner, West Coast Grocery, was posted
    at the site during the inspection.

[^4]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387(1991).

[^5]: ^?^ Payment of the forfeiture in installments may be considered as
    a separate matter in accordance with Section 1.1914 of the Rules, 47
    C.F.R. § 1.1914. Requests for installment plans should be mailed to:
    Chief, Credit and Debt Management Center, 445 Twelfth Street, S.W.,
    Washington, D.C. 20554. For information regarding credit card
    payments, the Chief, Credit and Debt Management Center, should be
    contacted at (202) 418‑1995.