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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 ) ) MULZER ENTERPRISES, INC. ) File No. 720EF00011 ) Licensee of Paging and Radiotelephone Service) Station KNLM888, Bandon, Indiana) ) MEMORANDUM OPINION AND ORDER Adopted: October 9, 1998 Released: October 13, 1998 By the Acting Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. The Acting Chief, Enforcement and Consumer Information Division, has under consideration: (a) a Notice of Apparent Liability ("NAL") assessing a proposed forfeiture of $2,000 against Mulzer Enterprises, Inc. ("Mulzer"), for failing to timely file an FCC Form 489, in apparent violation of Section 22.142(b) of the Commission's Rules; and (b) a response to the NAL filed by Mulzer on August 18, 1997. Mulzer argues in its response that its proposed forfeiture liability should be reduced or rescinded. For the reasons discussed below, we deny Mulzer's request and impose the forfeiture of $2,000. II. Background 2. The Commission granted Mulzer authorization to construct facilities for Station KNLM888 on August 25, 1995. The authorization required construction to be completed in one year, by August 25, 1996, and permitted operation on 152.12 MHz. Section 22.142(b) of the Commission's Rules required Mulzer to file an FCC Form 489 notifying the Commission of the commencement of service from the new location no later than 15 days after the start of service. 3. Mulzer timely completed construction and began operating the station by August 25, 1996. Mulzer, however, did not file FCC Form 489, which notifies the Commission that construction has been completed and service has begun. In accordance with Commission Rules, therefore, the Commission terminated Mulzer's authorization on October 30, 1996. Subsequently, on December 5, 1996, Mulzer filed an FCC Form 489 for Station KNLM888. 4. In the NAL, we found that because Mulzer commenced operation without timely filing an FCC Form 489, it was in apparent violation of Section 22.142(b) of the Commission's Rules, and that Mulzer's failure to file the FCC Form 489 until December 5, 1996, constituted repeated conduct within the meaning of Section 503(b)(1) of the Communications Act of 1934, as amended (the "Act"). We determined $2,000 to be the appropriate base forfeiture amount. After considering the factors for mitigation in  503(b)(2)(D) of the Act, and the facts in the case, we did not find a basis for mitigating or reducing the amount of Mulzer's forfeiture. III. Discussion 5. Mulzer does not dispute that it violated Section 22.142(b) of the Commission's Rules. Mulzer requests, however, that the forfeiture be reduced or rescinded. In its response to the NAL, Mulzer asserts that its late-filed FCC Form 489 was the result of an unintentional oversight, that the violation itself was minor, that it promptly disclosed its violation as soon as it learned of it, and it has a past record of compliance with the Commission's Rules. Also, Mulzer asserts that in previous cases, the Commission has dismissed or reduced forfeitures when the violation was minor, the licensee voluntarily disclosed the misconduct, and the administrative costs of pursuing a forfeiture exceeded the benefits to the Commission. In this regard, Mulzer relies on: Afton Communications Corporation, ("Afton"); Acadian Ambulance Service, Inc. ("Acadian"); and the Commission's new Forfeiture Policy Statement. 6. We do not agree with Mulzer's arguments. First, its assertion that it filed the FCC Form 489 late because of an "unintentional oversight" does not negate the fact that the violation occurred. Section 503(b) of the Act authorizes the Commission to issue forfeitures for either willful or repeated violations of its rules, and intent is not required to show either a willful or repeated violation. Second, although failing to timely file an FCC Form 489 may appear to be a relatively minor offense, the Commission routinely imposes monetary forfeitures for such a violation of our rules. The purpose of the FCC 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. Therefore, the Form has an important function. Third, the Division took the unusual action of dismissing the NAL in Afton because of the combined effect of mitigating factors, including voluntary disclosure of the violation and the age of that case, factors which are not present here. In Afton, the Division weighed the costs of pursuing a $1,000 forfeiture within the time remaining in which collection actions had to be pursued (five years after the underlying violations) and determined that it was in the public interest to cancel the forfeiture. The decision in Afton is, therefore, inapposite. Acadian is also inapposite. There, the Bureau reduced Acadian's forfeiture to $1,000 because Acadian voluntarily informed the Commission of its failure to file the FCC Form 489. Here, the Commission informed Mulzer of its violation through a Public Notice. Fourth, the Forfeiture Policy Statement is not applicable because Mulzer's violation took place prior to its effective date. Finally, we find no merit to Mulzer's claim that the forfeiture should be reduced because of Mulzer's record as a licensee. In this regard, we note that Mulzer merely makes a bare assertion that the forfeiture should be reduced because of "its past record of compliance with the Commission's Rules . . ." In the absence of a clearly articulated and specific claim concerning a meritorious past record, we find no basis to reduce the forfeiture in this instance. Licensees are expected to comply with all applicable rules. Mulzer has not satisfied its burden of demonstrating with specificity that its record of compliance warrants a reduction of the forfeiture. IV. Conclusion and Ordering Clause 7. Based on the foregoing, it is concluded that neither reduction nor recision of the proposed forfeiture is warranted. We find, therefore, that a forfeiture in the amount of $2,000 is appropriate in this matter. 8. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, that Mulzer Enterprises, Inc. SHALL FORFEIT to the United States the sum of two thousand dollars ($2,000) for violation of Section 22.142(b) of the Commission's Rules, 47 C.F.R.  22.142(b). 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. 9. A copy of this Notice is being sent, by Certified Mail/Return Receipt Requested, to Mulzer's counsel, Frederick M. Joyce, Esq., Joyce and Jacobs, 1019 19th Street, N.W., 14th Floor, Washington, D.C. 20036, by Certified Mail, Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Acting Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau