*Pages 1--3 from Microsoft Word - 5077.doc* Federal Communications Commission FCC 00- 413 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Colorado Small Business Development Assoc., Inc. ) EB- 00- TS- 011 Trunked Business Station WPHX776 ) NAL/ Acct. No.: 915DV0008 Denver, Colorado ) ) Westall Communications d/ b/ a M. T. W. ) EB- 00- TS- 012 Trunked Business Station WPHI656 ) NAL/ Acct. No.: 915DV0009 Denver, Colorado ) MEMORANDUM OPINION AND ORDER Adopted: November 22, 2000 Released: November 28, 2000 By the Commission: 1. In this Order, we deny the April 24, 2000, application for review filed by Colorado Small Business Development Association, Inc. (“ CSBDA”) and Westall Communications, d/ b/ a/ M. T. W. (“ Westall”) of the Forfeiture Order 1 in this proceeding. Pursuant to Section 503( b) of the Communications Act of 1934, as amended (“ the Act”), 47 U. S. C. § 503( b), and Section 1.80 of the Commission’s Rules (“ the Rules”), 47 C. F. R. § 1. 80, the Enforcement Bureau found CSBDA liable for a monetary forfeiture in the amount of $10,000 and Westall liable for a monetary forfeiture in the amount of $12,000 for unauthorized construction and operation of business radio transmitters in the greater Denver, Colorado area, in willful violation of Section 301 of the Act, 2 and former Section 90.113 of the Commission's Rules. 3 For the reasons discussed below, we deny the application and affirm the forfeitures. BACKGROUND 2. On September 22, 1999, the FCC’s Denver, Colorado Field Office issued Notices of Apparent Liability for Forfeiture (“ NALs”) to CSDBA and Westall in the amounts of ten thousand dollars ($ 10,000) and twelve thousand dollars ($ 12,000), respectively, 4 for unauthorized construction and operation of radio transmitters on frequencies 937.1500 MHz, 937.6500 MHz and 937.7375 MHz in the greater Denver, Colorado area. The NALs were prepared after an interview with a principal of both Westall and CSBDA, and inspections of the sites by FCC agents on September 23, 1998 and September 24, 1998. Though Westall and CSBDA were licensed to operate on these frequencies, the authorized locations for the transmitters were, respectively, 20 and 45 miles away from their actual locations. 1 15 FCC Rcd 5811 (Enf. Bur. 2000). 2 47 U. S. C. § 301 3 Effective February 12, 1999, Section 90.113 of the Commission’s Rules was incorporated into Section 1.903( a) of the Rules, 47 C. F. R. § 1.903( a). Since Section 90.113 of the Rules was applicable at the time the violations were noted, that Section was referenced in the NALs. 4 NAL Nos. 915DV0008 and 915DV0009 (FCC Denver Field Office, both released September 22, 1999). 1 Federal Communications Commission FCC 00- 413 2 3. CSDBA and Westall filed a consolidated response to both NALs on October 22, 1999, which argued that the NALs were not issued within one year of the occurrence of the violations, as required by Section 503( b)( 6)( B) of the Act, and should therefore be rescinded. Despite the release date of September 22, 1999 clearly marked on both NALs, Westall and CSBDA argued that the NALs failure to appear on the Commission’s Daily Digests for either September 22 or 23, 1999 indicated that neither NAL had actually been released. CSBDA and Westall further contended that the NALs were sent to them in envelopes postmarked more than one year after the violations were found, and that the NALs “can not be deemed ‘issued’ on September 22, 1993 [sic] simply because the Bureau staff places that date on a document that it neither releases nor mails to the licensee until a week later.” 4. The Forfeiture Order rejected these arguments, noting that the Denver Field Office originally sent the NALs to CSBDA and Westall on September 22, 1999, by Certified Mail, Return Receipt Requested, but CSBDA and Westall refused to accept delivery of them. When the certified letters came back after CSBDA and Westall refused delivery, the Denver Field Office made a second attempt to serve the NALs, this time by regular U. S. mail. The second attempt at service was successful, but the envelopes transmitting the NALs by regular mail were postmarked after the expiration of the statute of limitations. The Bureau concluded, “[ h] aving affirmatively refused service of the NALs that were issued and mailed to them prior to the expiration of the statute of limitations, CSBDA and Westall cannot now claim that the NALs fail because they were not issued within the timeframe established by 47 U. S. C. 503( b)( 6)( B).” 5 5. In the application for review, CSBDA and Westall reiterate the arguments previously rejected by the Enforcement Bureau in the Forfeiture Order, and allege that “[ t] here is absolutely no evidence whatsoever for [the Bureau’s] contention that CSBDA and Westall refused to accept delivery of official Commission correspondence, and the licensees categorically deny that they refused such delivery.” The application for review contends that the address to which the NALs were sent is the business address for both licensees as well as the residence of Mr. Westall, the principal of CSBDA and the owner of Westall. The application for review further asserts: “As such, the only persons who could have refused acceptance of the alleged attempt to served [sic] the notices on September 22, 1999 would have been wither [sic] Westall or his spouse. Each expressly denies ever having refused an attempted deliver [sic] from the Commission.” DISCUSSION 6. Despite the express denials of Mr. and Mrs. Westall referenced in the application for review, the certified mail envelopes returned to the Commission’s Denver office by the U. S. Postal Service are clearly marked “refused.” 6 Consequently, we find that Westall and CSBDA, who are both Commission licensees, did refuse to take delivery of the NALs, and we concur with the Bureau that Westall and CSBDA cannot now claim that the NALs were not issued in a timely fashion. See 47 C. F. R. § 1.5( b) (“ The licensee is responsible for making any arrangements which may be necessary in his particular circumstances to assure that Commission documents … delivered to … [his] address will promptly reach him or some person authorized by him to act in his behalf.”); see also U. S. v. Bolton, 781 F. 2d 528, 532 (6th Cir. 1985), cert. denied sub nom. Bolton v. United States, 476 U. S. 1158 (1986) (“ It is reasonable to assume that if persons refuse to accept delivery or collect their mail, the mail has in fact reached them.”); Hoffman v. National Equipment Rental, Ltd., 643 F. 2d 987, 990 (4th Cir. 1981) (A notice sent by certified mail was 5 15 FCC Rcd at 5812- 5813. 6 Copies of the returned certified mail envelopes are a part of the case file in this matter and are available for review at the Commission. 2 Federal Communications Commission FCC 00- 413 3 deemed to be served although the postal service returned certified mail notice as “refused.”). 7. The application for review also contends that, even had the original certified mailing of the NALs not been refused, the documents could not have been physically delivered to Westall and CSBDA prior to the expiration of the statute of limitations, and would thus still have been invalid. However, the statute does not require that the NAL be received within one year of the violation, but that the NAL must be issued within one year of the violation. 47 U. S. C. § 503( b)( 6)( B). Where, as here, the NAL is issued by a Commission Field Office, it is not published in the Federal Register; it is not released by making the full text available to the press and the public at Commission headquarters, and it does not appear on a Commission Public Notice or in the Daily Digest. In such a case, the date of issuance is the date that appears on the NAL. See 47 C. F. R. § 1.4( b)( 5) (in such circumstances, date of "public notice" for computation of time purposes is the date that appears on the item). Thus, the NALs, which were issued on September 22, 1999, complied with the statute of limitations even if received by the licensees after that date. ORDERING CLAUSES 8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 1.115( c) of the Rules, 47 C. F. R. § 1.115( c), the application for review of the Forfeiture Order for NAL Nos. 915DV0008 and 915DV0009 IS DENIED. 9. Payment of the forfeitures shall be made in the manner provided for in Section 1. 80 of the Commission’s Rules 7 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. 8 Payment may be made 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 NAL/ Acct. Numbers 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. 9 10. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order shall be sent by Certified Mail Return - Receipt Requested to Robert J. Keller, Esquire, at Law Offices of Robert J. Keller, P. C., P. O. Box 33428 - Farragut Station, Washington, D. C. 20033- 0428. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 7 47 C. F. R. § 1.80. 8 47 U. S. C. § 504( a). 9 See 47 C. F. R. § 1.1914. 3