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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 ) ) MACTEL FAIRBANKS, INC. ) File No. 920EF0023 ) Licensee of Point-to-Point Microwave ) Stations WPNC422 (North Pole, Alaska), ) AND WPNC423 (Fairbanks, Alaska). ) MEMORANDUM OPINION AND ORDER Adopted: June 28, 1999 Released: June 29, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. The Chief, Enforcement and Consumer Information Division, has under consideration: (a) a Notice of Apparent Liability ("NAL") against MACtel Fairbanks, Inc. ("MACtel"), licensee of Point-to-Point Microwave Stations WPNC422, North Pole, Alaska, and WPNC423, Fairbanks, Alaska; and (b) a response to the NAL filed by MACtel on April 28, 1999. The Division issued the NAL for $8,000 against MACtel for failing to obtain timely authorization to assign control of stations WPNC422 and WPNC423, in apparent violation of Section 310(d) of the Communications Act of 1934, as amended, and Section 101.53(a) of the Commission's Rules. MACtel argues in its response that the proposed forfeiture liability should be reduced or rescinded. For the reasons discussed below, we deny MACtel's request and impose an $8,000 forfeiture. II. Background 2. The stations in question were previously licensed jointly to Pacific Telecom Cellular of Alaska, Inc. ("PTCA"), a subsidiary of Pacific Telecom, Inc. ("PTI"), and Prudhoe Communications ("Prudhoe"). Together, PTCA and Prudhoe constituted Alaska RSA No. 1 General Partnership ("Partnership"), the licensee of cellular station KNKN204. The point-to-point microwave stations were used in connection with that cellular system. On August 15, 1997, the Partnership filed an application for the Commission's consent to assign the cellular license to MACtel, and the Commission granted the application on October 17, 1997. The assignment was consummated on January 1, 1998. At that time, MACtel also acquired control of Prudhoe. After the cellular license was assigned, PTCA and PTI became subsidiaries of Century Telephone Enterprises, Inc. ("Century"). 3. Prior to the transfer of control, MACtel did not file the applications for authorization to assign licenses WPNC422 and WPNC423 to MACtel. Therefore, MACtel did not have authority to operate those stations on January 1, 1998. On October 28, 1998, MACtel filed an STA Request for authority to operate WPNC422 and WPNC423. Century filed a letter supporting MACtel's request on November 6, 1998. The Commission granted the STA Request on November 10, 1998. MACtel subsequently filed the applications for authority to assign the licenses to MACtel on December 3, 1998. The Commission granted the assignment applications on January 29, 1999. III. Discussion 4. In its response, MACtel does not deny that it used the stations without appropriate authorization from the Commission. MACtel argues, however, that the unauthorized use of the stations was unintentional. MACtel further states that the oversight was caused by the Partnership's failure to inform MACtel of the existence of the point-to-point microwave licenses to be included in the transfer. Upon learning of the existence of the microwave stations, MACtel argues that it attempted to gain the appropriate authorization by promptly filing the STA Request and subsequently filing the application for authority to assign the licenses to MACtel. Finally, MACtel argues that it has a record of "overall compliance" with FCC regulations, and that its failure to obtain the appropriate authorization from the Commission was unintentional. MACtel maintains that these factors provide a sufficient basis for recision or reduction of the forfeiture. 5. We reject MACtel's arguments, and conclude that MACtel does not provide a sufficient basis for reducing or rescinding the forfeiture. While MACtel argues that its violations were not intentional, Section 503(b) of the Act allows the Commission to issue forfeitures for violations that are either willful or repeated. The Commission has held that an act or omission is "willful" if it is a conscious act or omission whether or not there is any intent to violate the rule. MACtel's actions were "willful" within the meaning of the statute because it consciously operated the system, including the stations in question. MACtel's violations were also repeated because it used the microwave stations for over 10 months without appropriate authorization before filing the STA Request. While MACtel argues that the Partnership (as opposed to MACtel) is responsible for the violations, MACtel does not explain why it operated the stations for over 10 months without seeking authority from the Commission to operate the stations. In light of MACtel's failure to take timely action and its failure to provide specific claims regarding MACtel's "meritorious past record," MACtel's alleged record of compliance with the Commission's Rules does not provide a basis for mitigating the forfeiture. Moreover, in the NAL, we reduced the proposed forfeiture amount from the base forfeiture amount of $8,000 a station provided for in the Commission's Forfeiture Policy Statement to $4,000 a station. Under those circumstances, even if MACtel had made specific claims concerning its record of compliance with the Commission's Rules, we do not believe a further reduction would be appropriate. IV. Conclusion and Ordering Clause 6. Based on the foregoing, MACtel's arguments are insufficient to justify reduction or recision of the forfeiture, and MACtel is liable for a forfeiture in the amount of $8,000. 7. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended and Section 1.80 of the Commission's Rules, MACtel Fairbanks, Inc., SHALL FORFEIT to the United States the sum of eight thousand dollars ($8,000) for willfully and repeatedly violating Section 310(d) of the Communications Act of 1934, as amended, and Section 101.53(a) of the Commission's Rules. 8. A copy of this Order shall be sent, by Certified Mail/Return Receipt Requested, to MACtel's counsel, Alane C. Weixel, Esq., Covington & Burling, 1201 Pennsylvania Avenue, NW, Washington, DC 20044-7566. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau