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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-060
Fransisco Peralta )
WNPY529 ) NAL/Acct. No.
East Elmhurst, NY )
) FRN: 0008 9137 41
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 13, 2003
By the District Director, New York Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Fransisco Peralta apparently violated
Section 90.403(a)(2) of the Commission's Rules (the ``Rules''),1
by operating mobile units on an unauthorized frequency of 151.635
MHz. We conclude that Fransisco Peralta is apparently liable for
a forfeiture in the amount of four thousand dollars ($4,000).
2. On May 1, 2003, Commission agents, using a mobile
direction finding vehicle, monitored the frequencies 151.805 MHz
and 151.635 MHz in East Elmhurst, NY, to follow-up an
investigation concerning the operation on unauthorized
frequencies in the Private Land Mobile Radio Services. The
agents determined that Continental Car Service, located at 98-02
Astoria Boulevard, East Elmhurst, NY 11369, operated mobile units
on a frequency of 151.635 MHz. The agents advised the dispatcher
on duty that the mobile units were operating on an unauthorized
frequency of 151.635 MHz. There was no evidence of a Commission
authorization for Continental Car Service to operate mobile units
on 151.635 MHz in East Elmhurst, NY.
3. On May 2, 2003, Commission agents, using a mobile
direction finding vehicle, monitored the frequencies 151.805 MHz
and 151.635 MHz in East Elmhurst, NY, and again determined that
Continental Car Service operated mobile units on a frequency of
151.635 MHz. They also inspected a second base station that was
operational on the unauthorized frequency of 31.320 MHz. A
subsequent search of Commission records showed that a license,
WPPK459, for the frequency of 33.160 MHz, had expired on
3/20/2002. The agents advised Andres Graceno, one of the owners
of Continental Car Service, that the mobile units were operating
on an unauthorized frequency of 151.635 MHz.
4. Section 90.403(a)(2) of the 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 Fransisco Peralta
was granted authority under his license, WNPY529, to operate one
base station and 25 mobile units on a frequency of 151.805 MHz.
Agents observed mobile units operating on 151.635 MHz.
5. Based on the evidence before us, we find that Fransisco
Peralta operated mobile units on an unauthorized frequency of
151.635 MHz on May 1, 2003 and May 2, 2003, in willful2 and
repeated3 violation of Section 90.403(a)(2) of the Rules.
6. 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. In this case, Fransisco Peralta has a history of non-
compliance, as evidenced by the expired license for the
transmitter that was operational on the unauthorized frequency of
31.320 MHz. 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
7. 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, Fransisco Peralta is hereby NOTIFIED of his APPARENT
LIABILITY FOR A FORFEITURE in the amount of four thousand dollars
($4,000) for willfully violating Section 90.403(a)(2) of the
8. 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, Fransisco Peralta SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
9. 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. 200332380022 and FRN: 0008 9137 41.
10. 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. 200332380022.
11. 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
12. 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
13. 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.
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Fransisco Peralta, 98-02 Astoria Boulevard, East
Elmhurst, NY 11369.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
Attachment A - Condensed List of Small Entities, October 2002
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).
3Section 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.