******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Franya Marzec, Complainant, v. Randy Power, Defendant. ) ) ) ) ) ) ) ) ) ) ) File No. WTB/ENF-98-0002 ORDER Adopted: February 28, 2000 Released: February 29, 2000 I.INTRODUCTION By the Chief, Enforcement Bureau: 1. In this order, we grant in part and deny in part a formal complaint filed by Franya Marzec ("Marzec") against Randy Power ("Power") pursuant to section 208 of the Communications Act of 1934, as amended ("the Act"). Marzec and Power are co-channel licensees of Specialized Mobile Radio ("SMR") frequency 854.0875 MHz. Marzec seeks a Commission order finding: (1) that Power has engaged in the unauthorized operation of mobile units in violation of the terms of his license for station WNXS420 in Lichtfield, Arizona (the "Power license"); (2) that Power operated his base station at an unauthorized location; and (3) that Power unlawfully interfered with Marzec's operations on the frequency shared by Marzec and Power. For the reasons stated below, we find that Power violated the terms of his Commission license by the unauthorized carriage of mobile traffic. We further find that Marzec has not met her burden of proof regarding her allegations that Power unlawfully interfered with her operations and operated his base station from an unauthorized location. II.BACKGROUND 3. The Commission issued Power his base station license in March 1992. Under the Commission's rules in effect at the time, Power did not have to obtain Commission permission to carry mobile units because mobile end users were required to obtain their own licenses. Not long after the Power license was issued, however, the Commission reversed its position by generally eliminating end-user licensing and requiring base station licensees to obtain authority for mobile operations. The Commission permitted base station licensees to continue carrying their licensed mobile end-user customers. None of Power's customers had obtained their mobile licenses under the old rules, even though Power had been serving these mobile units for some months. Accordingly, when the new rules went into effect, Power's base station license did not include authority for mobile operations. 4. Although Power continued to serve his mobile customers after the rule change, he did not file a timely application to modify his license to allow mobile operations. Because Power's license did not reflect any mobile traffic, under the Commission's rules, the frequency used by Power was subject to channel-sharing with another licensee. Thus, in January 1993, the Commission granted a SMR license to Marzec on the same frequency as the Power license. In contrast to Power, Marzec requested and received authority to employ 70 mobile units, enough mobile loading under the Commission's rules to qualify for exclusive use of the channel for mobile traffic. 5. Since the time Marzec began transmitting over the channel shared with Power in 1993, the parties have repeatedly clashed over control of the frequency. In this proceeding, Marzec has filed a formal complaint alleging that Power has violated his license by carrying mobile traffic on the frequency shared with Marzec. Marzec also claims that Power has interfered with her transmissions on the shared frequency, and that Power has transmitted from an unauthorized location. Marzec asks that the Commission award her money damages in an amount to be specified in a supplemental complaint, deny Power's renewal application, and terminate his license. In his Amended Answer, Power denies that he interfered with Marzec's transmissions or that he was transmitting from an unauthorized location. Power admits to operating mobiles on the shared frequency, but characterizes this traffic as consisting only of the single mobile unit necessary for license renewal under Commission rules as well as occasional "emergency backup" traffic ordinarily carried on Power's other channels. Power concedes that his license did not authorize mobile operations, but alleges that his license would have included mobile operations but for misconduct by Marzec, mistakes by the Commission's coordinating authority, and excusable mistakes by Power while acting pro se. VI.DISCUSSION A. Power Violated His License By Carrying Mobile Users 1. It is well established that the complainant has the burden of proof in a formal complaint proceeding under section 208 of the Act. Thus, Marzec must present affidavits or other relevant information establishing, by a preponderance of the evidence, that Power violated the Act or the Commission's rules. With respect to his affirmative defenses, Power bears an equal burden of demonstrating his claims by a preponderance of the evidence. 2. Marzec alleges that Power has violated section 301 of the Act and sections 90.113 and 90.135 of the Commission's rules by conducting mobile operations in violation of the terms of his license. We find that Power has carried mobile traffic in violation of his license, and thereby violated the Act and the rules. 3. Marzec alleges, and Power does not dispute, that the Power license does not currently authorize Power to operate mobile units. Nor does Power dispute that he continues to conduct mobile operations on the contested frequency. Power admits that he generally operates at least one mobile unit six times per week on the frequency and occasionally employs the channel as an "emergency back-up channel" for his school district customers' communications with their bus drivers. Based on the above, we find that Marzec has demonstrated that Power violated the terms of his license by conducting mobile operations. We now turn to Power's affirmative defenses to Marzec's claim. 4. Power argues that his conduct is excusable because he is allegedly required by sections 90.155(c) and 90.167(c) of the Commission's rules "to operate with at least one mobile unit in order to maintain his station's operation or risk cancellation of his license." In essence, Power argues that he is permitted to violate one set of Commission requirements (his license) in order to comply with another (sections 90.155(c) and 90.167(b)). This reasoning ignores a basic principle of statutory construction requiring that statutes and regulations be construed "'so that no provision is rendered inoperative or superfluous, void or insignificant.'" Power also overlooks the intent of the rules upon which he relies, which presume that any mobile unit carried pursuant to their requirements will be authorized under the license. Power has no authority to carry mobile traffic in the first place. Thus, Power's operation of the mobiles at issue in this case violates his license. 5. Power also claims that he is authorized to use the frequency "as an emergency back-up channel" for his "public safety customers." He describes these customers as "local government users which employ the channel for emergencies arising in the operation of school buses and the transporting of school children." According to Power, this use is "extremely limited" and "solely for emergency purposes when the other channel installed in the radios is out of service and, yet, the safety of the lives of the children require communications to protect the transport of those persons." 6. In support of this use, Power cites section 90.403(d) of the Commission's rules, which states that "[c]ommunications involving the imminent safety-of-life or property are to be afforded priority by all licensees." But section 90.403(d) does not authorize Power's mobile operations on the shared frequency. That rule limits the authority of Part 90 licensees by prioritizing emergency communications, and does not affirmatively grant carriers authority to ignore their license restrictions. The Commission has designated certain frequencies as available for public safety or occasional use, and the disputed channel is not one of these. Moreover, even if we adopted Power's interpretation of section 90.403(d), Power has not provided us with any specific evidence of emergencies involving the "imminent safety of life or property" that might excuse his violation of the rules. Indeed, Power's repeated use of the disputed frequency as an "emergency back-up channel" despite twice being informed by the Wireless Bureau that he could not conduct mobile operations on that frequency, and without taking some other measure to ensure his customers' communications, indicates that the frequency performs less of an "emergency" role for Power than a "back- up" one. 7. Power's other affirmative defenses essentially rely on attacking the legitimacy of Marzec's license and have no bearing on the question of whether Power carried unauthorized mobile traffic in violation of his license. For example, Power asserts that Marzec lacks standing to file a formal complaint because Marzec allegedly was not properly licensed by the Commission. But section 208 and the rules regarding formal complaints against common carriers generally authorize the filing of a complaint by "any person" claiming that a carrier has violated a provision of the Act or the Commission's rules. The complaint at issue satisfies each of the requirements of section 208 and it is irrelevant whether or not Marzec was appropriately licensed. Moreover, even if Marzec did not suffer any redressable injury from Power's actions, section 208 clearly states that "[n]o complaint shall at any time be dismissed because of the absence of direct damage to the complainant." 8. Power's other affirmative defenses are similarly meritless. He argues that Marzec's license application was premature and that "the Commission's grant of the license was an administrative error, subject to set aside, which would moot Marzec's complaint." Power also contends that Marzec did not maintain her authority to operate her license by failing to timely construct her station in the required location. As such, according to Power, "Marzec's use of the station is unauthorized and, therefore, not subject to protection as claimed by Marzec's Complaint." We reject each of these affirmative defenses. The status of Marzec's license is irrelevant to whether or not Power violated the terms of his license. Regardless of Power's belief that Marzec's license was granted in error or should be revoked, Power does not have the right to disregard the Commission's rules and the express terms of his license. Moreover, Power's challenges to Marzec's license are essentially counterclaims, and are explicitly barred from this proceeding under the rules governing formal complaints. Power also asserts that Marzec's claim is barred by the doctrine of unclean hands because Marzec has allegedly violated Commission rules in obtaining and operating under her license, and engaged in misconduct in this proceeding. Again, these allegations are irrelevant to a determination of whether Power violated the conditions of his license. 9. Power's Amended Answer asserts several other affirmative defenses. In his final brief, however, Power makes none of these arguments. Section 1.732(b) of the Commission's rules expressly warns that "all briefs shall include all legal and factual claims and defenses previously set forth in the complaint, answer, and any other pleading submitted in the proceeding. Claims and defenses previously made but not reflected in the briefs will be deemed abandoned." Accordingly, we find that Power has waived these affirmative defenses. A. Marzec Has Not Established That Power Transmitted From Unauthorized Locations 10. Marzec also alleges that Power transmitted from unauthorized locations, in violation of section 301 of the Act and Commission rules. She claims that the Power license authorizes transmissions only from White Tank Mountain, Arizona, and that Power has transmitted from other, improper, locations on at least two occasions. Power denies these allegations. We find that Marzec has not met her burden of proof with respect to this claim. 11. In her final brief and in the declaration attached to her complaint, Marzec claims that during the summer of 1997, Power improperly transmitted from his radio shop in Phoenix. Marzec states that she "discovered that Power was transmitting a disruptive signal from his radio shop in north Phoenix -- not at White Tank Mountain where Power is authorized. The only conceivable purpose for that signal, which did not support communications activities, was to disrupt my system's operation. Our attorney contacted Power's counsel at that time and the signal ceased emanating from that location." 12. This allegation was not properly made in Marzec's complaint, and therefore may not be considered in our decision. The complaint itself does not mention this claim. Rather, Marzec first mentions this alleged incident in a declaration attached to her complaint. Long-standing judicial precedent holds that a separate declaration may not correct a complaint's deficiencies. Accordingly, we will not consider this allegation. In any event, Marzec's only evidence of this alleged incident is her own declaration, unsupported by any documentary or testimonial evidence from the person(s) responsible for tracing the alleged interference. As such, Marzec has not met her burden of proving this allegation by a preponderance of the evidence. 13. Marzec alleges in her complaint that Power improperly operated from an equipment shed on Shaw Butte Mountain, Arizona, more than 28 miles away from White Tank. In support of this claim, Marzec attaches a declaration from a field technician who states that in January 1998, he traced a source of interference to Marzec's station to a transmitter building on Shaw Butte. In that building, and alongside equipment known to be owned by Power, the technician found a small Motorola Desktrac-format base station transmitter set to the same frequency as that used by Marzec and Power. The technician states that the transmitter was the only source of interference to Marzec's station. 14. We find that Marzec has not met her burden of proof with respect to this claim. The only proof offered by Marzec that Power owned the Shaw Butte transmitter is that the transmitter was set on the same frequency as that shared by Marzec and Power, and that Power owned other equipment in that same location. But Power denies that he owned the transmitter in question. Indeed, Power alleges, and Marzec does not deny, that the equipment in question was actually owned by Marzec's former brother-in-law. And although Power admits that he owned other equipment in the Shaw Butte shed, he points out that any transmission on the shared frequency from that location would have interfered with his own operations, as well as Marzec's. Finally, Power states, and Marzec again does not deny, that he does not use equipment compatible with the Shaw Butte transmitter. According to Marzec, the Shaw Butte transmitter was a Motorola transmitter. But Power contends that he uses "LTR format equipment that is incompatible with Motorola equipment." In view of the inconclusive nature of Marzec's proof on this claim, we find that she has not established, by a preponderance of the evidence, that Power transmitted from an unauthorized location. A. Marzec Has Not Proven That Power Interfered With Her Signal 15. Marzec also alleges that Power's mobile operations interfered with her transmissions in violation of section 333 of the Act, which states that "no person shall willfully or maliciously interfere with or cause interference to any radio communications by any station licensed or authorized by or under this Act ." Although we find above that Power carried mobile operations in violation of his license, Marzec has not provided us with sufficient evidence to find that these operations or other alleged actions by Power interfered with her operations in violation of section 333. Marzec's complaint alleges only one incident of interference by Power, which Power denies. But as discussed above, Marzec has not presented evidence sufficient to allow a reasonable person to conclude that Power was the source of the alleged interference. Accordingly, we find that Marzec has not met her burden of proof regarding this allegation. XVI.CONCLUSION 17. For the reasons discussed above, we conclude that Power violated section 301 of the Act and sections 90.113 and 90.135 of the Commission's rules by operating mobile units without a license. We reject Marzec's claims that Power violated sections 301 and 333 of the Act and relevant rules by transmitting from an unauthorized location and interfering with her transmissions, respectively. XVIII.ORDERING CLAUSES 19. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201(b), 205(a), and 208 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 205(a), and 208, and the authority delegated in sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. 0.111, 0.311, that Marzec's complaint IS GRANTED IN PART, and DENIED IN PART, as described in this Order. 20. It is FURTHER ORDERED, that the Motion to Dismiss, filed by Power on July 12, 1999, the Petition for Reconsideration and Objections to Interrogatories, filed by Marzec on April 21, 1999, the Motion to Strike or Request for Leave to File a Reply, filed by Power on April 21, 1999, and the Motion to Combine Proceedings, filed by Power on April 21, 1999, ARE DISMISSED as moot. 21. It is FURTHER ORDERED, that Power shall IMMEDIATELY upon release of this Order, stop all mobile operations, as described in this Order, under the Power license. 22. It is FURTHER ORDERED, pursuant to section 1.722(b)(2) of the Commission's rules, 47 C.F.R. 1.722(b)(2), that Marzec may file her supplemental complaint for damages within 60 days of the date of public notice of this order. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau