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

In the Matter of                 )
                                 )
J.C. Penney Company, Inc.        )           File Number:  EB-04-
                                 ) BF-201
Licensee of Station WPVX841      )
Amherst, New York                )           NAL/Acct. No. 
                                 ) 200632200001

                                             FRN  0004495776



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE


                                              Released:  November 
                                                          3, 2005

By the Regional Director, Northeast Region, Enforcement Bureau:

I.   INTRODUCTION

    1.    In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that J.C. Penney Company, Inc. ("J.C. Penney"), 
licensee of private land mobile station WPVX841 in Plano, Texas, 
apparently willfully and repeatedly violated Sections 1.903(a) 
and (b), Section 90.429(a) and (b), and Section 90.425(a) of the 
Commission's Rules ("Rules").1  These noted violations involve 
J.C. Penney's operation of a private land mobile station on an 
unauthorized frequency, failure to properly identify its station, 
and failure to maintain the required station control point.  We 
conclude, pursuant to Section 503(b) of the Communications Act of 
1934, as amended ("Act"),2 that J.C. Penney is apparently liable 
for a forfeiture in the amount of twenty-five thousand dollars 
($25,000).

II.  BACKGROUND

    2.    On November 4, 2004, the Buffalo Field Office 
(``Buffalo Office'') received an interference complaint from a 
licensee operating on 467.225 MHz in Buffalo, New York.  An agent 
from the Buffalo Office conducted a search of the FCC's database 
and determined that only the complainant was licensed to operate 
on 467.225 MHz in Buffalo, New York.  

    3.    On November 5, 2004, using direction finding 
techniques, the agent identified the source of the interference 
as the J.C. Penney store located in the Boulevard Mall in 
Amherst, New York.   During the course of identifying the source 
of the interference, the agent also monitored the transmissions 
on 467.225 MHz for ninety minutes.  The agent did not hear a 
station identification at any time during that ninety-minute 
period.

    4.    Also on November 5, 2004, the agent conducted an 
inspection of the station with one of the store's managers and 
confirmed that the transmitter in the store was the source of the 
interference.  The manager contemporaneously stated to the agent 
that there were twenty-eight mobile radios operating on the 
frequency 467.225 MHz at the J.C. Penney store in Amherst, New 
York and that the store had been using the radios for almost two 
years. The manager could not locate a copy of the station's 
license, but he contacted the J.C. Penney corporate office to 
obtain a copy.  The agent advised the manager that operation of a 
private land mobile station without a valid license is a 
violation of the Rules and that the station should cease 
operations.  The manager agreed not to operate the station until 
the matter regarding whether J.C. Penney had a license was 
resolved.

    5. Later that day, J.C. Penney's corporate office sent the 
agent a copy of the license.  According to the license, J.C. 
Penney is the licensee for private land mobile station WPVX841 
and is authorized to operate 10,000 units nationwide on the 
frequency 467.225 MHz, provided that the licensee comply with the 
``Special Condition'' that all operations be located south of 
Line A and/or west of Line C.3  Such special conditions routinely 
are imposed by the FCC to ensure compliance with the bilateral 
agreement between the U.S. and Canada, which provides that 
certain frequencies may not be assigned for operation north of 
Line A without prior coordination between the U.S. and Canadian 
governments.4  The bilateral agreement was reached between the 
U.S. and Canada in order to resolve cross-border interference 
issues.

    6.    On November 19, 2004, the Buffalo Office continued its 
investigation and issued a Letter of Inquiry (``LOI'') to J.C. 
Penney seeking information regarding its nationwide operations: 
(1) the total number of stores operating radios on 467.225 MHz, 
(2) the total number of stores operating north of Line A and the 
number of radios in those stores, (3) whether any of the stores 
are designated as ``control points'' for purposes of the license 
for station WPVX841, (4) whether the stores using mobile radios 
on the frequency 467.225 MHz are provided copies of the license 
for WPVX841, and (5) whether there is a policy for identification 
of station WPVX841 at each of the stores.  J.C. Penney responded 
to the LOI on December 13, 2004.  In its response, J.C. Penney 
reported that there are 1020 J.C. Penney stores that are equipped 
with mobile radios that operate on 467.225 MHz and approximately 
127 of those stores are located north of Line A.  The 127 stores 
located north of Line A operate a total of approximately 1524 
mobile radios.  J.C. Penney further reported that only its Plano, 
Texas store is designated as a control point for purposes of the 
WPVX841 license.  J.C. Penney also stated that it is in the 
process of ensuring that each station has a license posted and 
that proper station identifications are provided on the radios.

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) has been interpreted to mean simply that 
the acts or omissions are committed knowingly.5  The term 
``repeated'' means the commission or omission of such act more 
than once or for more than one day.6 

    8.    Section 1.903(a) provides that ``[s]tations 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.''  Section 
1.903(b) provides that ``holding of an authorization does not 
create any rights beyond the terms, conditions, and period 
specified in the authorization.''  The license for station 
WPVX841 includes a ``Special Condition,'' which specifically 
states that the ``[a]rea of operation is restricted to south of 
Line A and/or west of Line C.''  Based on the November 5, 2004 
investigation, the FCC agent determined that the private land 
mobile station operating on the frequency 467.225 MHz in a J.C. 
Penney store located in Amherst, New York, north of Line A, was 
causing interference to a station authorized to operate on that 
frequency north of Line A.  Moreover, during the inspection 
conducted on November 5, 2004, one of the managers of the Amherst 
J.C. Penney store reported to the agent that the store had been 
operating twenty-eight mobile radios on that frequency for almost 
two years.7  The operation of these mobile radios north of Line A 
on the frequency 467.225 MHz was in direct contravention of the 
station's authorization.

    9.    Section 90.425(a) of the Rules provides that ``[e]ach 
station and system shall be identified by the transmission of the 
assigned call sign during each transmission or exchange of 
transmissions, or once every 15 minutes (30 minutes in the Public 
Safety Pool) during periods of continuous operation.  The call 
sign shall be transmitted by voice in the English language or by 
International Morse Code in accordance with paragraph (b) of this 
section.''  On November 5, 2004, the FCC agent from the Buffalo 
Office monitored the station for ninety minutes during which time 
the agent did not hear a station identification.  

    10.   Section 90.429(a) of the Rules provides that ``[u]nless 
permitted to be operated on an unattended basis, each station 
shall be provided with a control point.''   Section 90.429(b) of 
the Rules provides that the control point is an operating 
position (1) that must be under the control and supervision of 
the licensee; (2) where a person immediately responsible for the 
operation of the transmitter is stationed; and (3) where the 
monitoring facilities are installed.  J.C. Penney's license for 
station WPVX841 does not provide for operation on an unattended 
basis.  On November 5, 2004, the FCC Agent noted that J.C. Penney 
did not maintain a control point for purposes of the license for 
station WPVX841 at its Amherst, New York store.8 

    11.   Based on the evidence before us, we find that the J.C. 
Penney store located in Amherst, NY, apparently willfully and 
repeatedly violated Sections 1.903(a) and (b), Sections 90.429(a) 
and (b), and Section 90.425(a) of the Rules by operating its 
private land mobile station in direct contravention of its 
station authorization, by failing to properly identify the 
Amherst station, and by failing to maintain a station control 
point for the Amherst station.

    12.   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 is four thousand dollars ($4,000) for operating on an 
unauthorized frequency, one thousand dollars ($1,000) for failing 
to provide a station identification, and three thousand dollars 
($3,000) for violation of transmitter control requirements.9  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.10  Applying 
the Forfeiture Policy Statement, Section 1.80, and the statutory 
factors to the instant case, we find that an upward adjustment is 
appropriate given the length of time that the J.C. Penney store 
in Amherst, New York had operated north of Line A in direct 
contravention of the station authorization.11  We therefore 
conclude that J.C. Penney is apparently liable for a twenty-five 
thousand dollar ($25,000) forfeiture.

    13.   It does not appear, based on a search of the FCC's 
database, that J.C. Penney has modified its license for WPVX841.  
Additionally, it is not apparent that J.C. Penney has brought its 
other stores north of Line A into compliance with the FCC's 
rules.  We direct J.C. Penney to file a written statement 
describing in detail, including a definitive number of stores 
located north of the Line A, the steps it plans to take to ensure 
that its private land mobile stations operating pursuant to the 
license for station WPVX841 come into compliance with the FCC's 
Rules regarding station control points and station 
identification.  In addition, we direct J.C. Penney to submit a 
sworn statement that it will not operate its private land mobile 
stations under the license for WPVX841 until such time that the 
issues regarding its license are resolved.  

IV.  ORDERING CLAUSES

    14.   Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and 
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules, 
J.C. Penney Company, Inc. is hereby NOTIFIED of this APPARENT 
LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand 
dollars ($25,000) for violations of Sections 1.903(a) and (b),  
90.429(a) and (b), and  90.425(a) of the Rules.12

    15.   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 for Forfeiture, J.C. Penney 
Company, Inc. SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

    16.   IT IS FURTHER ORDERED that, within thirty days of the 
release date of this Notice of Apparent Liability, J.C. Penney 
Company, Inc. SHALL FILE a written statement as described in 
paragraph 13 supra.  

    17.   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.  

    18.   The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Northeast Region, 
1550 Northwest Highway, Room 306, Park Ridge, IL, 60068, and must 
include the NAL/Acct. No. referenced in the caption.  

    19.   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.  

    20.   Requests for payment of the full amount of this Notice 
of Apparent Liability for Forfeiture under an installment plan 
should be sent to: Associate Managing Director, Financial 
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C. 
20554.8

    21.   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 J.C. Penney 
Company, Inc. at its address of record. 

                              FEDERAL COMMUNICATIONS COMMISSION




                              Russell Monie, Jr.
                              Regional Director
                              Northeast Region
                              Enforcement Bureau



_________________________

147 C.F.R.  1.903(a), 1.903(b), 90.425(b), 90.429(a), 
90.429(b).
247 U.S.C.  503(b).
3Section 90.7 of  the Rules  defines line A  as:  ``An  imaginary 
line within the U.S., approximately paralleling the U.S.-Canadian 
border, north  of  which Commission  coordination  with  Canadian 
authorities  in  the  assignment  of  frequencies  is   generally 
required.  It  begins at  Aberdeen,  Washington .  . .  [to]  the 
southernmost  point  of  Searsport,  Maine,  at  which  point  it 
terminates.''  47 C.F.R.   90.7.  Similarly,  line C is  defined 
as:  ``An imaginary line in Alaska approximately paralleling  the 
border with Canada,  East of which  Commission coordination  with 
Canadian  authorities  in  the   assignment  of  frequencies   is 
generally required.   It begins  at 70  N., 144  W., thence  by 
great circle arc. . . so as to include all the Alaskan Panhandle.  
Id.
4See Exchange of Notes (October 24, 1962) Between the  Government 
of Canada  and the  Government of  the United  States of  America 
Concerning the Coordination  and Use of  Radio Frequencies  Above 
Thirty Megacycles Per Second,  Technical Annex (revised June  16, 
1965).  See also 47 C.F.R.  1.928.
5Section 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).
6Section 312(f)(2) of the Act, 47 U.S.C.  312(f)(2), which also 
applies to violations for which forfeitures are assessed under 
Section 503(b) of the Act, provides that "[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.'' 
7We note that,  in response to  the November 19,  2004 LOI,  J.C. 
Penney stated that there are approximately 127 J.C. Penney stores 
that operate north  of Line A  on 467.225 MHz,  using a total  of 
1524 mobile radios.  
8See 47 C.F.R.  1.1914.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
1047 U.S.C.  503(b)(2)(D).
11We note that  each day is  a violation and  that, although  the 
statute of limitations does not  permit us to assess  forfeitures 
for violations  one year  prior  to the  date  of the  Notice  of 
Apparent Liability, we can use prior bad behavior to determine an 
appropriate   forfeiture    amount.    See    e.g.,    Roadrunner 
Transportation, Inc. et al., 15 FCC Rcd 9669 (2000).
1247 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 0.314, 1.80, 
1.903(a), 1.903(b), 90.425(b), 90.429(a), 90.429(b).
8See 47 C.F.R.  1.1914.