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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-NY-018
Caprice Car Service II )
WPDF849 ) NAL/Acct. No.
Flushing, NY )
) FRN: 0005 5586 97
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 14, 2004
By the District Director, New York Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Caprice Car Service II (``Caprice'') has
apparently violated Section 1.903(a) of the Commission's Rules
(the ``Rules'')1, by operating mobile units on an unauthorized
frequency of 159.950 MHz. We conclude that Caprice is apparently
liable for forfeiture in the amount of four thousand dollars
2. On or about January 29, 2004, the FCC New York Office
received a complaint from a FCC licensed user of interference to
the frequency 154.490 MHz. The complaint alleged that Caprice
located at 135-16 37th Avenue, Flushing, NY 11354, was
responsible for the interference.
3. On February 4, 2004, a Commission agent conducted an
inspection of Caprice and determined that Caprice, located at
135-16 37th Avenue, Flushing, NY 11354, operated mobile units on
a frequency of 159.950 MHz. Caprice's base station was found to
be operating on the licensed frequency 154.490 MHz. The agent
advised the dispatcher on duty that Caprice's mobile units were
operating on an unauthorized frequency of 159.950 MHz. There was
no evidence of a Commission authorization for Caprice to operate
mobile units on 159.950 MHz in Flushing, NY.
4. On February 5, 2004, Commission agents, using a mobile
direction finding vehicle, monitored the frequencies 154.490 MHz
and 159.950 MHz in Flushing, NY, and again determined that
Caprice, located at 135-16 37th Avenue, Flushing, NY 11354,
operated mobile units on a frequency of 159.950 MHz. The agents
advised Hernan Cardenas, owner of Caprice that the mobile units
were operating on an unauthorized frequency of 159.950 MHz.
There was no evidence of a Commission authorization for Caprice
to operate mobile units on 159.950 MHz in Flushing, NY.
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 Caprice was granted
authority under its license, WPDF849, to operate a base station
and 40 mobile units on a frequency of 151.490 MHz, and a base
station and 20 mobile units for the frequency of 154.490 MHz.
Agents observed mobile units operating on 159.950 MHz.
6. Based on the evidence before us, we find that, Caprice
willfully2 and repeatedly3 violated Section 1.903(a) of the Rules
by operating mobile units on February 4, 2004, and February 5,
2004, on an unauthorized frequency of 159.950 MHz.
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 Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, Caprice is hereby NOTIFIED of their APPARENT LIABILITY
FOR A FORFEITURE in the amount of four thousand dollars ($4,000)
for willful and repeated violations of Section 1.903(a) of the
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, Caprice 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. 200432380014 and FRN: 0005 5586 97.
11. Any response to this NAL must be mailed to Federal
Communications Commission, New York Office, 201 Varick Street,
New York, NY 10014, and MUST INCLUDE THE NAL/Acct. No.
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 Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Washington DC 20554. 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 Caprice Car Service II, 135-16 37th Avenue,
Flushing, NY 11354.
Daniel W. Noel
New York Office
Attachment A - FCC List of Small Entities, October 2002
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).
47 U.S.C. § 503(b)
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.