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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-PA-
New York Radio Service )
WPTM988 ) NAL/Acct. No.
Brooklyn, New York ) FRN: 0005-1516-83
Adopted: June 16, 2004
Released: June 18, 2004
By the Chief, Enforcement Bureau:
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
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.
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.
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
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''
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
11. We do, however, find that NYRS has a history of overall
compliance and, accordingly, reduce the forfeiture amount to
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,
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.