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


In the matter of                 )    File No. EB-02-NY-192
                                )
New Eastern Car & Limo Service   )    NAL/Acct. No. 200332380004
WPAK215, Brooklyn, New York      )
                                )    FRN: 0004-0271-08


                        FORFEITURE ORDER

   Adopted:  May 3, 2004                Released:  May 5, 2004

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
       monetary forfeiture in the amount of one thousand five 
       hundred dollars ($1,500) to New Eastern Car & Limo 
       Service (``New Eastern''), licensee of station WPAK215, 
       Brooklyn, New York, for willful and repeated violation of 
       Section 90.403(a)(2) of the Commission's Rules 
       (``Rules'').1  The noted violation involves New Eastern's 
       operating radio transmitting equipment on an unauthorized 
       frequency. 
     2.   On November 6, 2002, the Commission's New York, New 
       York District Office (``New York Office'') issued a 
       Notice of Apparent Liability for Forfeiture (``NAL'') to 
       New Eastern for a forfeiture in the amount of four 
       thousand dollars ($4,000).2  New Eastern filed a response 
       to the NAL on December 3, 2002.
                         II.  BACKGROUND

     3.   On August 20 and 21, 2002, while assessing compliance 
       in the Private Land Mobile Service with a mobile 
       direction finding vehicle, Commission agents from the New 
       York Office monitored the frequency 31.90 MHz in 
       Brooklyn, New York.  The agents determined that New 
       Eastern, located at 100 - 102 Bushwick Ave., New York, 
       New York 11206, was operating its base station on the 
       frequency 31.90 MHz.  The agents found no evidence of a 
       Commission authorization issued to New Eastern to operate 
       on 31.90 MHz.  On August 21, 2002, the agents advised the 
       manager of New Eastern that its base station was 
       operating on an unauthorized frequency of 31.90 MHz and 
       that New Eastern's station license to operate on 31.92 
       MHz had expired on August 20, 2002.  
     4.   On August 22, 2002, the New York Office sent a Warning 
       Letter to New Eastern for operation on an unauthorized 
       frequency of 31.90 MHz.  New Eastern responded on August 
       23, 2002, stating that their equipment was corrected for 
       the frequency 31.92 MHz on August 21, 2002, the same day 
       that the New York Office agents spoke to New Eastern's 
       manager.  
     5.   On November 6, 2002, the District Director of the New 
       York Office issued a NAL to New Eastern for apparent 
       willful and repeated violation of Section 90.403(a)(2) of 
       the Rules by operating radio transmitting equipment on an 
       unauthorized frequency of 31.90 MHz.  In its response on 
       December 3, 2002, New Eastern admitted it operated on 
       31.90 MHz on the day it was inspected by the New York 
       Office agents.  New Eastern requested that if the 
       Commission did not cancel the forfeiture, to consider 
       reducing it.  New Eastern provided profit and loss 
       statements for 1999, 2000, and 2001. 
                      III.      DISCUSSION

     6.   The proposed forfeiture amount in this case was 
       assessed in accordance with Section 503(b) of the 
       Communications Act of 1934, as amended, (``Act''),3 
       Section 1.80 of the Rules,4 and The Commission's 
       Forfeiture Policy Statement and Amendment of Section 1.80 
       of the Rules to Incorporate the Forfeiture Guidelines, 12 
       FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 
       (1999) (``Policy Statement'').  In examining New 
       Eastern's response, Section 503(b) of the Act requires 
       that the Commission take into account 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 such 
       other matters as justice may require.5
     7.   Section 90.403(a)(2) of the Rules requires licensees of 
       radio stations in the private land mobile radio services 
       to ``exercise such direction and control as is necessary 
       to assure that all authorized facilities are employed 
       only in a permissible manner.''  The New York Office 
       investigation established that New Eastern operated a 
       transmitter located at 100 - 102 Bushwick Ave., New York, 
       on an unauthorized frequency (31.90 MHz) and, therefore, 
       failed to exercise the direction and control necessary to 
       assure that its facilities were employed only in a 
       permissible manner by operation on its licensed frequency 
       of 31.92 MHz.  Based on the facts before us, we find that 
       New Eastern willfully6 and repeatedly7 violated Section 
       90.403(a)(2) of the Rules. 
     8.   We have reviewed the financial information provided by 
       New Eastern and we find that this information provides a 
       basis for reduction of the forfeiture to one thousand 
       five hundred ($1,500) dollars on the basis of inability 
       to pay.8    
     9.   We have examined New Eastern's response to the NAL 
       pursuant to the statutory factors above, and in 
       conjunction with the Policy Statement as well.  As a 
       result of our review, we conclude that New Eastern 
       willfully and repeatedly violated Section 90.403(a)(2) of 
       the Rules and we find that, although cancellation of the 
       proposed monetary forfeiture is not warranted, reduction 
       of the forfeiture amount is appropriate as indicated 
       above. 
                      IV.  ORDERING CLAUSES

     10.  Accordingly, IT IS ORDERED that, pursuant to Section 
       503(b) of the Act, and Sections 0.111, 0.311 and 
       1.80(f)(4) of the Rules,9 New Eastern Car & Limo Service 
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of one 
       thousand five hundred dollars ($1,500) for its violation 
       of Section 90.403(a)(2) of the Rules.  
     11.  Payment of the forfeiture shall be made in the manner 
       provided for in Section 1.80 of the Rules within 30 days 
       of the release of this Order.  If the forfeiture is not 
       paid within the period specified, the case may be 
       referred to the Department of Justice for collection 
       pursuant to Section 504(a) of the Act.10  Payment may be 
       made by mailing a check or similar instrument, payable to 
       the order of the Federal Communications Commission, to 
       the Federal Communications Commission, P.O. Box 73482, 
       Chicago, Illinois 60673-7482.  The payment should 
       reference NAL/Acct. No. 200332380004 and FRN 0004-0271-
       08.  Requests for full payment under an installment plan 
       should be sent to: Chief, Revenue and Receivables Group, 
       445 12th Street, S.W., Washington, D.C. 20554.11   
     12.  IT IS FURTHER ORDERED that a copy of this Order shall 
       be sent by First Class and Certified Mail Return Receipt 
       Requested to Mr. Julio Toala, New Eastern Car & Limo 
       Service, 100-102 Bushwick Ave., Brooklyn, NY 11206.  


                         FEDERAL COMMUNICATIONS COMMISSION
                    


                              David H. Solomon
                              Chief, Enforcement Bureau


_________________________

1 47 C.F.R.  90.403(a)(2).  
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332380004 (Enf. Bur.,  New York Office,  released November  6, 
2002).    
3 47 U.S.C.  503(b).
4 47 C.F.R.  1.80.
5 47 U.S.C.  503(b)(2)(D).
6 Section  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,' 
... 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 ....''  Southern  California Broadcasting Co., 6  FCC 
Rcd 4387 (1991).
7 New Eastern operated on an unauthorized frequency on August  20 
and August  21,  2002. As  provided  by 47  U.S.C.    312(f)(2), 
``[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.'' The  Conference 
Report for Section 312(f)(2) indicates that Congress intended  to 
apply this  definition to  Section  503 of  the  Act as  well  as 
Section 312.   See  H.R. Rep.  97th  Cong. 2d  Sess.  51  (1982).  
Southern California Broadcasting Co., supra.
8  The Commission has determined  that, in general, a  licensee's 
gross revenues are  the best indicator  of its ability  to pay  a 
forfeiture.  PJB  Communications of  Virginia,  Inc., 7  FCC  Rcd 
2088, 2089  (1992)  (forfeiture  not deemed  excessive  where  it 
represented approximately 2.02  percent of  the violator's  gross 
revenues); Hoosier  Broadcasting Corporation,  15 FCC  Rcd  8640, 
8641 (Enf. Bur. 2002) (forfeiture  not deemed excessive where  it 
represented approximately  7.6 percent  of the  violator's  gross 
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com.  Car. 
Bur. 1992) (forfeiture not deemed excessive where it  represented 
approximately 3.9 percent of the violator's gross revenues). 
9 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
10 47 U.S.C.  504(a).
11 See 47 C.F.R.  1.1914.