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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
                                 )       File Number: EB-05-SD-003
Tocabi America Corporation       )
Licensee of WPXB706              )      NAL/Acct. No: 200532940012
Chula Vista, California          )
                                 )               FRN: 0007-2934-83



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                             Released:  September 
                                                         28, 2005


By the District Director, San Diego Office, Western Region, 
Enforcement Bureau:


I.   INTRODUCTION

1.        In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that Tocabi America Corporation ("Tocabi"), 
licensee of station WPXB706, in Chula Vista, California, 
apparently willfully and repeatedly violated Section 1.903(a) of 
the Commission's Rules ("Rules")1 by operating microwave radio 
transmitting equipment on an unauthorized microwave channel of 
22455.0 MHz and at an unauthorized location.2  We conclude, 
pursuant to Section 503(b) of the Communications Act of 1934, as 
amended ("Act"),3 that Tocabi is apparently liable for a 
forfeiture in the amount of four thousand dollars ($4,000).


II.  BACKGROUND

2.          On January 4, 2005, an agent from the Commission's 
San Diego Office was investigating allegations that companies in 
the Chula Vista, California were using unauthorized microwave 
radio stations to communicate with sister companies across the 
U.S. - Mexico border in Tijuana, Mexico.  The agent attempted to 
monitor and measure the transmissions of a microwave radio 
station operated at the geographical coordinates as specified in 
the station authorization WPXB706 for Tocabi America Corporation, 
a manufacturer of furniture cabinets.4  No microwave radio 
station was found at this location.

3.        On January 11, 2005, another agent from the 
Commission's San Diego Office continued the investigation of the 
Tocabi microwave radio station. The agent found the Tocabi office 
at 755 Main Street, Chula Vista, California, approximately 4.75 
kilometers east of the authorized location.5  The agent monitored 
the microwave radio station and found the station operating on 
microwave channel 22455.0 MHz.6  However, a review of the 
Commission's database revealed that Tocabi has no authorization 
or pending application to operate a point-to-point microwave 
radio station on microwave channel 22455.0 MHz in Chula Vista, 
California.  The station authorization for WPXB706 specifies 
frequency 23400.0 MHz. 

4.        The San Diego agent returned to the Tocabi office on 
February 18, 2005, and again measured the microwave radio station 
operating on microwave channel 22455.0 MHz.  At this time the 
agent conducted an inspection of the microwave radio station with 
a Tocabi staff member.   A copy of FCC license for WPXB706 posted 
at the transmitter site was given to the agent, indicating the 
authorized frequency as 23400.0 MHz. 

5.        On February 27, 2005, the San Diego Office sent a 
Letter of Inquiry (``LOI'') to Tocabi concerning its unauthorized 
operation on 22455.86 MHz in Chula Vista, California.7  The San 
Diego Office received a reply on March 11, 2005. In its reply, 
Tocabi states that the operating frequency for station WPXB706 
was misprogrammed by the company that installed the microwave 
station and that the consultant had submitted incorrect 
coordinates in its application to the Commission.

6.          On March 23, 2005, a San Diego agent monitored 
23400.0 MHz in Chula Vista and found that station WPXB706 was 
operating on its authorized frequency.  Additionally, a review of 
the Commission's database revealed that on July 5, 2005, Tocabi 
filed an application to modify the WPXB706 license to accurately 
reflect the station's current location.8


III.      DISCUSSION

7.        Section 503(b) of the Act provides that any person who 
willfully or repeatedly fails to comply substantially with the 
terms and conditions of any license, or willfully or repeatedly 
fails to comply with any of the provisions of the Act or of any 
rule, regulation or order issued by the Commission thereunder, 
shall be liable for a forfeiture penalty.  The term "willful" as 
used in Section 503(b) of the Act has been interpreted to mean 
simply that the acts or omissions are committed knowingly.9  The 
term ``repeated'' means the commission or omission of such act 
more than once or for more than one day.10
8.        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.  On 
January 11, 2005 and February 18, 2005, San Diego agents 
determined that Tocabi was operating a microwave radio station, 
WPXB706, on the unauthorized frequency of 22455.0 MHz.  Also, the 
San Diego agents determined that Tocabi was operating microwave 
radio station WPXB706 approximately 4.75 kilometers east of its 
authorized location.  Further, Tocabi acknowledged in its reply 
to the LOI that the station was operating on an unauthorized 
frequency at the wrong location.

9.        Tocabi was aware of the licensed frequency and proper 
location for WPXB706 but failed to operate on that frequency or 
location.  Therefore, its violations were willful.  The 
violations occurred on more than one day, therefore, they were 
repeated.  Based on the evidence before us, we find that Tocabi 
apparently willfully and repeatedly violated Section 1.903(a) of 
the Rules by operating a microwave radio station on an 
unauthorized frequency of 22455.0 MHz and at an unauthorized 
location.

10.       Pursuant to The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines ("Forfeiture Policy 
Statement"), and Section 1.80 of the Rules, the base forfeiture 
amount for using an unauthorized frequency is $4,000.11  In 
assessing the monetary forfeiture amount, we must also take into 
account the statutory factors set forth in Section 503(b)(2)(D) 
of the Act, which include the nature, circumstances, extent, and 
gravity of the violations, and with respect to the violator, the 
degree of culpability, and history of prior offenses, ability to 
pay, and other such matters as justice may require.12  We note 
that in its reply to the LOI, Tocabi acknowledges that it was 
operating on the wrong frequency at an unauthorized location.  
San Diego agents have confirmed Tocabi is now operating on its 
authorized frequency, and has submitted an application to modify 
its authorized location.  The Commission has stated in the past 
that a licensee is expected to correct errors when they are 
brought to the licensee's attention and that such correction is 
not grounds for a downward adjustment in the forfeiture.13 
Additionally, a licensee is required to operate on the frequency 
stated in its authorization.14  Finally, a licensee is 
responsible and liable for a violation of the Rules, even if the 
cause of the violation was errors by its consultant.15  
Accordingly, applying the Forfeiture Policy Statement, Section 
1.80, and the statutory factors, we conclude that Tocabi is 
apparently liable for a forfeiture in the amount of $4,000.


IV.  ORDERING CLAUSES

11.       Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and 
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Tocabi 
America Corporation is hereby NOTIFIED of this APPARENT LIABILITY 
FOR A FORFEITURE in the amount of four thousand dollars ($4,000) 
for violation of Section 1.903(a) of the Rules.16

12.       IT IS FURTHER ORDERED that, pursuant to Section 1.80 of 
the Commission's Rules, within thirty (30) days of the release 
date of this Notice of Apparent Liability for Forfeiture, Tocabi 
America Corporation SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

13.       Payment of the forfeiture must be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission. The payment must include the 
NAL/Acct. No. and FRN No. referenced above. Payment bycheck or 
money order may be mailed to Federal Communications Commission, 
P.O. Box358340,Pittsburgh, PA 15251-8340. Payment by overnight 
mail may be sent toMellon Bank/LB358340,500 Ross Street, Room 
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be 
made to ABA Number043000261, receiving bankMellon Bank, and 
account number911-6106.  

14.       The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Western Region, 
San Diego Office, 4542 Ruffner Street, Suite 370, San Diego, 
California 92111, within thirty (30) days from the release date 
of this Notice of Apparent Liability for Forfeiture and must 
include the NAL/Acct. No. referenced in the caption.  

15.       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 
submitted.

     16.  Requests for payment of the full amount of this Notice 
of Apparent Liability for Forfeiture under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.17

     17.  IT IS FURTHER ORDERED that a copy of this Notice of 
Apparent Liability for Forfeiture shall be sent by Certified 
Mail, Return Receipt Requested, and regular mail, to Tocabi 
America Corporation at its address of record.



                              FEDERAL COMMUNICATIONS COMMISSION



                              William R. Zears, Jr.
                              District Director 
                              San Diego Office
                              Western Region
                              Enforcement Bureau

_________________________

147 C.F.R.  1.903(a).
247 C.F.R.  101.147(s). 
347 U.S.C.  503(b).
4The coordinates on the WPXB706 authorization are 3235'38.2'' 
north latitude and 11704'04.9'' west longitude. 
5The coordinates for this location are 3235'37'' north latitude 
and 11701'02'' west longitude.  
6The actual measurement made by  the agent showed the station  to 
be operating on 22455.86 MHz.  
722455.86 MHz is within the maximum allowable tolerance of 
microwave channel 22455.0 MHz.  See 47 C.F.R.  101.147(s). 
8See File No. 0002226777.  Pursuant to Sections 101.31(b)(1) and 
101.31 (b)(1)(v) of the Rules, 47 C.F.R.  101.31(b)(1), 
101.31(b)(1)(v), certain applicants for point-to-point microwave 
stations, not located within 56.3 kilometers of any international 
border, operating in certain frequency bands, are deemed to have 
conditional authority to operate their proposed stations during 
the pendency of their applications.  The frequencies used by 
Tocabi are not contained in these frequency bands.  Also, 
Tocabi's proposed station is located approximately 5.6 km from 
the Mexican border.  
9Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to violations for which forfeitures are assessed under 
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 or any rule or regulation of the Commission authorized 
by this Act...."  See Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
10Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to violations for which forfeitures are assessed under 
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 or any rule or regulation of the Commission authorized 
by this Act...."  See Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
1247 U.S.C.  503(b)(2)(D).
13AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 
(2002).
14Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
15Wagenvoord Broadcasting Co., 35 FCC 2d 361, 361-62 (1972). 
1647 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 1.80, 1.903(a).
17See 47 C.F.R.  1.1914.