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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-PA-
New York Radio Service ) NAL/Acct. No.
Brooklyn, New York ) FRN: 0005-1516-83
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 6, 2003
By the District Director, Philadelphia Office, Enforcement
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that New York Radio Service (``NYRS'') has
apparently violated Section 1.903(a) of the Commission's Rules
(the ``Rules'').1 This violation occurred because NYRS operated
station WPTM988 on the frequency 452.000 MHz at the unauthorized
location of 700 Victory Boulevard, Staten Island, New York
("Parkview House"). We conclude that NYRS is apparently liable
for a forfeiture in the amount of four thousand dollars ($4,000).
2. On July 26, 2002, the Philadelphia Office received
information that radio-transmitting equipment was being operated
at the Parkview House without authorization from the Commission.
On July 30, 2002 and July 31, 2002, FCC agents from the
Philadelphia Office and New York Office conducted an
investigation into the complaint. Between 7:00 p.m. and 8:00
p.m. on July 30, 2002 and between 10:00 a.m. and 11:00 a.m. on
July 31, 2002, the agents monitored radio communications on the
frequency 452.000 MHz and used direction-finding techniques to
determine that the source of the radio transmissions was located
at the Parkview House.
3. At approximately 3:45 p.m., Mr. Howard Miller, the
President of Statcom Communications Corporation, met with the
agents and permitted them to inspect the radio equipment in a
room on the 14th Floor of the Parkview House. This is the same
room where Statcom Communications Corporation operated its UHF
trunk radio system. During the inspection, the agents observed a
radio transmitter labeled with the frequency 452.00 MHz and the
call sign WPTM988. The agents used an Optoelectronics frequency
counter to verify that the radio transmitter operated on the
frequency 452.000 MHz. During the inspection, Mr. Miller stated
that he installed the 452.000 MHz radio transmitter at the
Parkview House for NYRS because they wanted to test the coverage
of their 452.000 MHz radio transmitter from this alternate site.
4. On September 4, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to NYRS for operating a radio
transmitter on the frequency 452.000 MHz at an unauthorized
location, in violation of Section 1.903(a) of the Rules. In the
Notice of Violation, the Philadelphia Office stated that although
NYRS was authorized to operate station WPTM988 on the frequency
452.000 MHz at 1633 Broadway, New York, New York, it was
operating the station on July 30, 2002 and July 31, 2002 at the
5. On September 30, 2002, Ms. Elizabeth Sachs of Lukas,
Nace, Gutierrez & Sachs submitted a response to the NOV on behalf
of NYRS. In the response, Ms. Sachs acknowledged the violation
and stated that NYRS inadvertently relocated station WPTM988
prior to receiving conditional authority to operate the station
at the Parkview House.
6. Section 1.903(a) of the Rules states that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service
as set forth in this title and with a valid authorization granted
by the Commission under the provisions of this part. On July 30,
2002 and July 31, 2002, NYRS operated a radio transmitter on the
frequency 452.000 MHz at the Parkview House, 700 Victory
Boulevard, Staten Island, New York. The license for station
WPTM988 authorizes NYRS to operate a radio transmitter on the
frequency 452.000 MHz at 1633 Broadway, New York.
7. Based on the evidence before us, we find that NYRS
willfully2 and repeatedly3 violated Section 1.903(a) of the
Rules. 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 construction or operation at
an unauthorized location 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 1934,5 (the ``Act''), as amended, 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 Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 NYRS is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
its operation of station WPTM988 at an unauthorized location.
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, NYRS SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
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. 200332400005 and FRN: 0005-1516-83.
11. The response, if any, 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. 200332400005 and FRN:
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 Receivables 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 York Radio Service, 927 McDonald
Avenue, Brooklyn, New York 11218, and to Lukas, Nace, Gutierrez &
Sachs, 1111 Nineteenth Street, N.W., Suite 1200, Washington, D.C.
John E. Rahtes
Attachment A - FCC's List of Small Entities
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.
4 47 C.F.R. § 1.80.
5 47 U.S.C § 503(b)(2)(D).
6 47 U.S.C § 503(b).
7 47 C.F.R. §§ 0.111 and 0.311.
8 See 47 C.F.R. § 1.1914.