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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
Adopted: May 3, 2004 Released: May 5, 2004
By the Chief, Enforcement Bureau:
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
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.
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
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.
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
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
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,
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.