Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Acapulco Car Service, Inc. )
Brooklyn, New York ) File No. EB-02-NY-129
) NAL/Acct. No. 200332380002
) FRN 0004-5052-44
Adopted: January 7, 2004 Released: January 9,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) to Acapulco Car Service, Inc. (``Acapulco''), licensee
of station WPRJ622, Brooklyn, New York, in the Wireless Radio
Service for willful and repeated violation of Section 1.903(a) of
the Commission's Rules (``Rules'').1 The noted violation
involves Acapulco's operation of radio transmitting equipment on
unauthorized frequency 36.50 MHz.
2.On October 8, 2002, the District Director of the
Commission's New York, New York Office (``New York Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'') to
Acapulco in the amount of four thousand dollars ($4,000).2
Acapulco filed a response to the NAL.
2. On July 9, 2002, Commission agents, using a mobile
direction finding vehicle, monitored frequencies 35.80 MHz and
36.50 MHz in Brooklyn, New York, to assess compliance in the
Private Land Mobile Radio Service. The agents determined that
Acapulco operated mobile radio units on frequency 36.50 MHz,
although they were licensed to operate on frequency 35.80 MHz.
3. On July 10, 2002, Commission agents, using a mobile
direction finding vehicle, monitored frequencies 35.80 MHz and
36.50 MHz in Brooklyn, New York. Again the agents determined
that Acapulco operated mobile radio units on frequency 36.50 MHz.
Also on July 10, 2002, the agents conducted an inspection of
station WPRJ622 and confirmed that, although Acapulco's base
transmitter was operating on authorized frequency 35.80 MHz, the
mobile radio units were operating on unauthorized frequency 36.50
4. On October 8, 2002, the District Director of the New
York Office issued a NAL to Acapulco. In its response, Acapulco
requests reduction or cancellation of the proposed forfeiture.
Acapulco states that it was unaware that it was using an
unauthorized frequency. Acapulco further states that the
unauthorized frequency was installed, unbeknownst to it, by a
communications company to solve a problem Acapulco was having
with background noise from drivers. Finally, Acapulco states
that it has programmed its equipment to operate only on its
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''),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.5 In examining Acapulco'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 other such matters
as justice may require.6
6. Section 1.903(a) of the Rules provides that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service
and with a valid authorization granted by the Commission. On
July 9 and 10, 2002, Acapulco operated its mobile radio units on
frequency 36.50 MHz, an unauthorized frequency. We find that
Acapulco willfully7 and repeatedly8 operated in violation of
Section 1.903 of the Rules. In its response to the NAL, Acapulco
indicated that an independent contractor may have been
responsible for the unauthorized operation. However, ``the
Commission has long held that licensees and other Commission
regulates are responsible for the acts and omissions of their
employees and independent contractors and has consistently
refused to excuse licensees from forfeiture penalties where
actions of employees or independent contractors have resulted in
violations.''9 Finally, although Acapulco states that it has
programmed its equipment to operate only on its licensed
frequency, we note that remedial actions taken to correct the
violation, while commendable, are not mitigating factors.10
IV. ORDERING CLAUSES
6. 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,11 Acapulco Car Service, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of four thousand dollars ($4,000) for
its willful and repeated operation of radio transmitting
equipment on an unauthorized frequency on July 9 and 10, 2002 in
violation of Section 1.903(a) of the Rules.
7. 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.12
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.
200332380002 and FRN 0004-5052-44. 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.
8. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Acapulco Car Service, Inc., 4911 8th Avenue,
Brooklyn, New York 11220.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 1.903(a).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332380002 (Enf. Bur., New York Office, released October 8,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 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 ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
8 As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues 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). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
9 See, e.g. Eure Family Limited Partnership, 17 FCC Rcd 21861,
21863-64 (2002) (internal quotation marks omitted) and cases
10 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.