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

In the Matter of                   )         File No. EB-02-PA-
298
                                )
New York Radio Service          )
WPTM988                         )       NAL/Acct.             No. 
200332400005
Brooklyn, New York              )       FRN: 0005-1516-83

                                                       
                        FORFEITURE ORDER

Adopted:  June 16, 2004                                   
Released:  June 18, 2004 

By the Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
          monetary  forfeiture in  the amount  of three  thousand 
          two hundred dollars ($3,200) to New York Radio  Service 
          (``NYRS''),  licensee  of  private  land  mobile  radio 
          station WPTM988, for willful and repeated violation  of 
          Section    1.903(a)   of    the   Commission's    Rules 
          (``Rules'').1  The  noted  violation  involves   NYRS's 
          operation  of   radio  transmitting  equipment  at   an 
          unauthorized location.

     2.   On January  6,  2003,  the  District  Director  of  the 
Commission's    Philadelphia,    Pennsylvania,    Field    Office 
(``Philadelphia Office'') issued a  Notice of Apparent  Liability 
for Forfeiture (``NAL'') in the amount of $4,000 to NYRS.2   NYRS 
responded to the NAL on February 5, 2003.

II.  BACKGROUND

     3.   On July 26,  2002, the Philadelphia  Office received  a 
complaint  alleging   that  radio   transmitting  equipment   was 
operating at the  Parkview House, 700  Victory Boulevard,  Staten 
Island, New York, without authorization from the Commission.   On 
July 30 and 31, 2002, FCC agents from the Philadelphia Office and 
the Commission's New  York, New  York, Field  Office (``New  York 
Office'') conducted an investigation into the complaint.  Between 
7:00 p.m. and 8:00 p.m. on  July 30, 2002 and between 10:00  a.m. 
and 11:00  a.m. on  July  31, 2002,  the agents  monitored  radio 
communications on  frequency  452.000  MHz  and  used  direction-
finding techniques to determine that  the Parkview House was  the 
source of the radio transmissions. The agents  inspected a  radio 
transmitter located on the  14th Floor of  the Parkview House  at 
approximately 3:45 p.m.  on July 31,  2002.  The transmitter  was 
labeled with frequency 452.00 MHz and the call sign WPTM988.  The 
agents verified that it operated on frequency 452.000 MHz.  As of 
July 30 and 31, 2002,  station WPTM988 was authorized to  operate 
on frequency 452.00 MHz at 1633 Broadway, New York, New York, but 
was not authorized to operate at the Parkview House.

     4.   On January 6, 2003, the Philadelphia Office issued  the 
subject NAL  to NYRS  finding that  it willfully  and  repeatedly 
violated Section 1.903 of the Rules.  In its response, NYRS seeks 
cancellation or reduction  of the  proposed monetary  forfeiture.   
NYRS asserts  that, through  an inadvertent  error, it  relocated 
station WPTM988 to the Parkview  House in mid-July 2002 prior  to 
receiving conditional authority to operate at that location.3  In 
particular, NYRS asserts that it incorrectly believed its counsel 
had filed an application on its behalf to relocate WPTM988 to the 
Parkview House.  Additionally, NYRS asserts that it remedied  its 
unauthorized operation  by  filing  an  application  to  relocate 
WPTM988 to the Parkview House, 4 and has now ceased operation  at 
the Parkview House.  Finally, NYRS  argues that its violation  is 
not as  egregious as  unlicensed ``pirate''  operation, that  its 
unauthorized operation did not cause any harmful interference and 
that it has a history of overall compliance.

III.   DISCUSSION

     5.   The  proposed  forfeiture  amount  in  this  case   was 
assessed in accordance with Section 503(b) of the  Communications 
Act of 1934, as amended  (``Act''),5 Section 1.80 of the  Rules,6 
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 NYRS'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.7

     6.   Section 1.903(a) of the Rules requires that stations in 
the Wireless Radio  Services be  used and operated  with a  valid 
authorization granted by  the Commission.  On  July 30, 2002  and 
July 31, 2002, NYRS operated a radio transmitter at the  Parkview 
House,  700  Victory  Boulevard,  Staten  Island,  New  York,  on 
frequency  452.000  MHz.    The  license   for  station   WPTM988 
authorized NYRS to operate a  radio transmitter on the  frequency 
452.000 MHz at 1633 Broadway, New  York, New York.  Based on  the 
facts before us, we find  that NYRS repeatedly8 violated  Section 
1.903(a) of the Rules.

     7.   NYRS argues  that  its violation  of  Section  1.903(a) 
resulted from an inadvertent error.   Although NYRS may not  have 
intended to violate  the rule by  moving the station  to the  new 
location, we  find  that  the  move was  a  deliberate  act.   We 
therefore find that NYRS  willfully violated Section 1.903(a)  of 
the Rules.9  

     8.   NYRS also argues that we should consider the fact that, 
unlike the operation  in MariTEL Mississippi  River, Inc.,10  the 
unauthorized operation from the Parkview House did not cause  any 
harmful interference. To take enforcement action on the basis  of 
unauthorized  operation,   we  need   not  establish   that   the 
unauthorized operation  caused harmful  interference.11  We  find 
that any  lack  of  harmful interference  resulting  from  NYRS's 
unauthorized operation does not warrant cancellation or reduction 
of the proposed forfeiture.

     9.   NYRS asserts that its operation is not as egregious  as 
that  of  a  ``pirate''   operator.12   The  Enforcement   Bureau 
recognized this fact in setting the proposed forfeiture amount at 
$4,000, which is the base  forfeiture amount for operation at  an 
unauthorized  location,  rather   than  at   $10,000,  the   base 
forfeiture  amount  for  operation   without  an  instrument   of 
authority.13  Therefore, no reduction  is warranted on the  basis 
that NYRS's operation is not as egregious as that of a ``pirate'' 
operator.

     10.  No mitigation  is  warranted  on the  basis  of  NYRS's 
correction of the violation.  As the Commission stated in Seawest 
Yacht Brokers, 9 FCC Rcd  6099, 6099 (1994), ``corrective  action 
taken to come into compliance with Commission rules or policy  is 
expected, and does not nullify or mitigate any prior  forfeitures 
or violations.''14

     11.  We do, however, find that NYRS has a history of overall 
compliance and,  accordingly,  reduce the  forfeiture  amount  to 
$3,200.

     12.  We have examined NYRS'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 
NYRS willfully and  repeatedly violated Section  1.903(a) of  the 
Rules and we  find that,  although cancellation  of the  proposed 
monetary forfeiture is not warranted, reduction of the forfeiture 
amount to $3,200 is appropriate.
     
     IV.  ORDERING CLAUSES

     13.  ACCORDINGLY, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the Act,15 and Sections 0.111, 0.311 and 1.80(f)(4)  of 
the Rules,16  New York  Radio Service  IS LIABLE  FOR A  MONETARY 
FORFEITURE in the amount of  $3,200 for willfully and  repeatedly 
violating Section 1.903(a) of the Rules. 

     14.  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.17  
Payment shall 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  note 
NAL/Acct. No. 200332400005, and  FRN 0005-1516-83.  Requests  for 
full payment under an installment plan should be sent to:  Chief, 
Revenue and Receivables Operations Group, 445 12th Street,  S.W., 
Washington, D.C. 20554.18


     15.       IT IS FURTHER  ORDERED THAT a  copy of this  Order 
shall be sent by first  class and certified mail, return  receipt 
requested, to New  York Radio Service  and its counsel  Elizabeth 
Sachs, Esq.,  Lukas, Nace,  Gutierrez  & Sachs,  1111  Nineteenth 
Street, N.W., Suite 1200, Washington, D.C. 20036.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1 47 C.F.R.  1.903(a). 

2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332400005 (Enf. Bur., Philadelphia Office, released January 6, 
2003).

3 In certain  circumstances, Section 90.159(b)  of the Rules,  47 
C.F.R.  90.159(b),  allows an applicant  for modification of  an 
existing land mobile radio station  license to operate under  the 
proposed modification during the pendency of the application.

4 The  Commission's  records indicate  that  NYRS filed  such  an 
application on August 15,  2002.  That application was  dismissed 
on  January 19, 2003.

5 47 U.S.C.  503(b).

6 47 C.F.R.  1.80.

7 47 U.S.C.  503(b)(2)(D).

8 As  provided by  Section  312(f)(2) of  the  Act, 47  U.S.C.   
312(f)(2),  a   violation  which   occurs  more   than  once   is 
``repeated.''   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).   See  Southern   California 
Broadcasting Co., 6 FCC Rcd 4387 (1991).

     9 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', 
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 4387-88 (1991).



10 18 FCC Rcd 1481 (Enf. Bur. 2003).

11 See, e.g., Stephen Paul Dunifer, 11 FCC Rcd 718, 726 (1995).

12 The cases  NYRS cites --  WWC Licensee LLC,  16 FCC Rcd  19490 
(Enf. Bur. 2001), and Falcon Radio, Inc., 16 FCC Rcd 14830  (Enf. 
Bur. 2001) -- support this position.

13  See note to 47 C.F.R.  1.80(b)(4).

14 See also Callais  Cablevision, Inc., 17  FCC Rcd 22626,  22629 
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  and 
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).

15 47 U.S.C.  503(b).

16 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

17 47 U.S.C.  504(a).

18 See 47 C.F.R.  1.1914.