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                           Before the
                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
                                )



                        FORFEITURE ORDER

     Adopted:  January 7, 2004          Released:  January 9, 
     2004  

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     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.

                     II.          BACKGROUND

     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 
MHz.  

     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 
licensed frequency.    

                        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''),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. 
20554.13  

     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, 
2002).  
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 
cited therein.
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.