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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-192
New Eastern Car & Limo Service ) NAL/Acct. No.
Brooklyn, NY ) FRN: 0004-0271-08
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 6,
By the District Director, New York Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that New Eastern Car & Limo Service (``New
Eastern'') has apparently violated Section 90.403(a)(2) of the
Commission's Rules (the ``Rules'')1, by operating radio
transmitting equipment on an unauthorized frequency of 31.90 MHz.
We conclude that New Eastern is apparently liable for forfeiture
in the amount of four thousand dollars ($4,000).
2. On August 20, 2002, a Commission agent, using a mobile
direction finding vehicle, monitored the frequency 31.90 MHz in
Brooklyn, NY, to assess compliance in the Private Land Mobile
Radio Services. The agent determined that New Eastern located at
100-102 Bushwick Avenue, Brooklyn, New York 11206, operated on
the frequency 31.90 MHz. There was no evidence of a Commission
authorization to operate this station on the frequency 31.90 MHz
in Brooklyn, NY.
3. On August 21, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequency 31.90 MHz in
Brooklyn, NY. The agents again determined that New Eastern
operated on a frequency of 31.90 MHz. The agents conducted a
station inspection and determined that New Eastern's base
transmitter was operating on a frequency of 31.90 MHz. The
agents advised Julio Toala, manager of New Eastern, that the base
station was operating on an unauthorized frequency of 31.90 MHz,
and that the station license had expired August 20, 2002.
4. On August 22, 2002, the New York Office sent a Warning
Letter, by First Class and Certified Mail Return Receipt
Requested, to New Eastern Car & Limo Service for operation of an
unauthorized frequency of 31.90 MHz, as New Eastern's license had
expired on August 20, 2002. On August 26, 2002, New Eastern
submitted a letter stating that Universal Licensing Service
received New Eastern's application for renewal of their license
prior to the expiration date on the license and so New Eastern
was still considered licensed. On August 27, 2002, New Eastern
submitted a reply to the Warning Letter, admitting using the
frequency 31.90 MHz on August 21, 2002.
5. Section 90.403(a)(2) of the Commission's Rules requires
that licensees in the private land mobile radio services shall be
directly responsible for the proper operation and use of each
transmitter for which they are licensed. In this connection,
licensees shall exercise such direction and control as to assure
that the transmitter is being operated in a permissible manner.
A review of Commission's records showed that New Eastern was
granted authority under their license, WPAK215, to operate on a
frequency of 31.92 MHz. Agents observed the base station
operating on a frequency of 31.90 MHz.
6. Based on the evidence before us, we find that, New
Eastern Car & Limo Service, operated radio transmitting equipment
on an unauthorized frequency of 31.90 MHz on August 20, 2002 and
August 21, 2002, in willful2 and repeated3 violation of Section
90.403(a)(2) 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 (the ``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
Commission's Rules7, New Eastern Car & Limo Service is hereby
NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for willfully violating
Section 90.403(a)(2) of the Commission's Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, New Eastern Car & Limo Service
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
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. 200332380004 and FRN: 0004-0271-08.
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. 200332380004.
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 Technical and Public Safety
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 New Eastern Car & Limo Service, 100-102 Bushwick
Avenue, Brooklyn, NY 11206.
Daniel W. Noel
New York Office
1 47 C.F.R. § 90.403(a)(2)
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.