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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-129
Acapulco Car Service, Inc. )
WPRJ622 ) NAL/Acct. No.
Brooklyn, NY )
) FRN: 0004-5052-44
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 8,
By the District Director, New York Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Acapulco Car Service, Inc. (``Acapulco'')
has apparently violated Section 1.903(a) of the Commission's
Rules (the ``Rules'')1, by operating radio transmitting equipment
on an unauthorized frequency of 36.50 MHz. We conclude that
Acapulco is apparently liable for forfeiture in the amount of
four thousand dollars ($4,000).
2. On July 9, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequencies 35.80 MHz
and 36.50 MHz in Brooklyn, NY, to assess compliance in the
Private Land Mobile Radio Services. The agents determined that
Acapulco operated mobile units on a frequency of 36.50 MHz.
There was no evidence of a Commission authorization for operation
on the frequency 36.50 MHz in Brooklyn, NY.
3. On July 10, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequencies 35.80 MHz
and 36.50 MHz in Brooklyn, NY. The agents again determined that
Acapulco operated mobile units on a frequency of 36.50 MHz. The
agents conducted a station inspection and determined that
Acapulco's base transmitter, located at 4911 8th Avenue,
Brooklyn, New York 11220, was operating on the licensed
frequency, 35.80 MHz. At the time of inspection, the agents
advised Everado Torres, owner of Acapulco, that Acapulco's mobile
units were operating on an unauthorized frequency of 36.50 MHz.
4. On July 12, 2002, the New York Office sent a Notice of
Violation to Acapulco for operation on an unauthorized frequency
of 36.50 MHz. On August 9, 2002, Acapulco submitted a reply to
the Notice of Violation, admitting using the frequency 36.50 MHz.
5. Section 1.903(a) of the Rules requires that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service,
and with a valid authorization granted by the Commission. A
review of Commission's records showed that Acapulco was granted
authority under its license, WPRJ622, to operate one base station
and 45 mobile units on a frequency of 35.80 MHz.
6. Based on the evidence before us, we find that, Acapulco
Car Service, Inc. operated mobile units on July 9, 2002, and July
10, 2002, on an unauthorized frequency of 36.50 MHz, in willful2
and repeated3 violation of Section 1.903(a) of the Rules.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy Statement'')4,
sets the base forfeiture amount for using an unauthorized
frequency at $4,000. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Communications Act of 1934, as
amended,5 (``Act'') which include the nature, circumstances,
extent, and gravity of the violation, and with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a four thousand dollar ($4,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, Acapulco Car Service, Inc., is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for willfully violating Section
1.903(a) of the Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Acapulco Car Service, Inc., SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380002 and FRN: 0004-5052-44.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332380002.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
14. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the [relevant Division]. Your
certification should indicate whether you, including your parent
entity and its subsidiaries, meet one of the definitions set
forth in the list provided by the FCC's Office of Communications
Business Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used for
tracking purposes only. Your response or failure to respond to
this question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the Communications
Act. If you have questions regarding any of the information
contained in Attachment A, please contact OCBO at (202) 418-0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Acapulco Car Service, Inc., 4911 8th Avenue,
Brooklyn, NY 11220.
Daniel W. Noel
New York Office
1 47 C.F.R. § 1.903(a).
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he 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 ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he 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 or, if such commission or
omission is continuous, for more than one day.
447 C.F.R. § 1.80.
47 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.