Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



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


In the Matter of                 )
                                )
Portland Taxicab Company,        )    File No. EB-03-PO-070
Licensee of Station WPRJ576      )
Portland, Oregon                 )    NAL/Acct. No. 200432920001
                                )
                                )    FRN 000-865-1051
                                )
                                )



                         FORFEITURE ORDER


Adopted:  November 10, 2004             Released:  November 18, 
2004            

By the Assistant Chief, Enforcement Bureau:

I.  INTRODUCTION

1.   In this Forfeiture Order (``Order''), we issue a monetary 
forfeiture in the amount of twelve thousand dollars ($12,000), to 
Portland Taxicab Company ("Portland Taxicab"), licensee of 
Station WPRJ576, for its willful and repeated violation of 
Sections 1.903(a), 90.210, 90.403(e) and 90.425(a) of the 
Commission's Rules ("Rules").1  The noted violations involve 
Portland Taxicab's operation on frequencies 452.250 and 457.250 
MHz without valid FCC authorization, transmission of spurious 
emissions resulting in harmful interference to an amateur radio 
station, and failure to transmit proper station identification.

2.   On January 30, 2004, the Resident Agent of the Commission's 
Portland, Oregon Field Office ("Portland Office") issued a Notice 
of Apparent Liability for Forfeiture ("NAL")2 in the amount of 
twelve thousand dollars ($12,000).  Portland Taxi filed a 
response on February 27, 2004.

II.  BACKGROUND

3.         On March 13, 2003, the Portland Office received a 
complaint from amateur radio station AB7F that interference was 
being received in its frequency band of 440.700 MHz - 440.780 
MHz.  An agent monitored the frequency band and observed the 
interference.  The agent located the interfering signal  to a 
repeater station operating on the frequencies 452.250 MHz and 
457.250 MHz on top of Mt. Scott in Clackamas County, Oregon.  
Using the geographical coordinates for the station,3 the agent 
searched the Commission records4 which did not reveal any 
licenses authorized to operate on the frequencies 452.250 MHz or 
457.250 MHz within this location.  The agent also observed and 
measured spurious emissions in the frequency band from 440.700 
MHz to 440.780 MHz at approximately 55 dB below the fundamental 
frequency 452.250 MHz transmitted from this repeater.  The agent 
located the repeater's control point station to Portland 
Taxicab's business at 12624 NE Halsey Street, Portland Oregon. 
 
4.        The agent inspected the control point station at this 
address which had Portland Taxicab's FCC call sign license for 
WPRJ576 displayed.  The license authorized repeater and mobile 
station operation on frequencies 452.125 MHz and 457.125 MHz in 
Clackamas County, Oregon.  The agent issued verbal warnings to 
Portland Taxicab's office manager regarding its unauthorized 
operation on frequencies 452.250 MHz and 457.250 MHz and the 
station's spurious emissions transmitted by the repeater station 
causing interference to amateur station AB7F.  The agent also 
issued a warning regarding the station's failure to transmit the 
station identification.  Portland Taxicab's station manager 
informed the agent that the station would change the frequencies 
and fix the transmitter.

5.        On March 17, 2003, the Portland Office agent again 
monitored the frequencies 452.250 MHz and 457.250 MHz and found 
the system still to be in violation of each of the above cited 
rules, at the same location notwithstanding the March 13, 2003 
warning. 

6.         On January 30, 2004, the Portland Office issued an NAL 
to Portland Taxicab for its unauthorized transmissions on 452.250 
MHz and 457.250 MHz, its spurious emissions causing interference 
to amateur radio operation and its failure to identify the 
station during its operation.  On February 27, 2004, the Bureau 
received a response to the NAL.  In its response, Portland 
Taxicab does not dispute the violations.  Rather, Portland 
Taxicab states that it has fired its former station manager for 
misleading the owners and failing to properly operate the company 
resulting in financial difficulties making it impossible to pay 
the forfeiture and avoid bankruptcy. Portland Taxicab states that 
it fixed the interference problem as quickly as it could to 
maintain communications with its taxi cabs.   In support of its 
claim of an inability to pay the forfeiture, Portland Taxicab 
submitted its 2000 tax return and several unsigned ``balance 
sheets'' and a letter from its current manager regarding its 
current financial condition.  Consequently, Portland Taxicab 
requests a cancellation or reduction of the proposed forfeiture.     

III. DISCUSSION     

     7.   The 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).  In 
examining Portland Taxicab'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
     8.   Portland Taxicab acknowledged that the violations for 
which it was cited did, in fact, occur but claims that it did not 
intentionally violate any FCC order.  Commission precedent holds 
that a violation need not be intentional to be willful. 8  
Because there is no dispute as to whether the violations 
occurred, we affirm issuance of the forfeiture and conclude that 
Portland Taxicab Company willfully and repeatedly9 violated 
Sections 1.903(a), 90.210, 90.403(e) and 90.425(a) of the Rules.  
9.          In mitigation, Portland Taxicab attributes the 
violations to the incompetence of a general manager who has been 
fired.  The improper actions by an employee cannot save Portland 
Taxicab from responsibility for its violations.   The Commission 
has long held that the licensee is responsible for the acts and 
omissions of its employees.10  Thus, Portland Taxicab is 
responsible for the violations which occurred during the tenure 
of its previous general manager. Additionally, Portland Taxicab's 
remedial actions to correct the violations subsequent to 
notification of the violations do not mitigate the violations.11  
It is well established that ``corrective action taken to come 
into compliance with Commission Rules or policy is expected,12 
and does not nullify or mitigate any prior forfeitures or 
violations.''

10.  Further, with respect to Portland Taxicab Company's request 
for a waiver or substantial reduction of the forfeiture claiming 
an inability to pay the $12,000 dollar forfeiture assessed, as 
explicitly stated in the NAL, the Commission will not consider 
reducing or canceling a forfeiture in response to a claim of 
inability to pay unless the petitioner submits adequate 
documentation to support its claim.13  Portland Taxicab failed to 
submit acceptable documentation providing only its 2000 tax 
return and various other non verified documents.  Because 
Portland Taxicab failed to present acceptable documentation 
regarding its claimed inability to pay the forfeiture, we have no 
basis on which to analyze its claim.  Accordingly, no reduction 
is warranted.  Finally, although there is precedent for reducing 
or rescinding a forfeiture based on bankruptcy in certain 
circumstances,14 Portland Taxicab Company has not filed for 
bankruptcy.  
      

IV.  ORDERING CLAUSES

11.  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,15 Portland Taxicab Company.  IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of twelve thousand dollars ($12,000) for 
willfully and repeatedly violating Sections 1.903(a), 90.210, 
90.403(e) and 90.425(a) of the Rules.

12.  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.16  
Payment shall be made by check or similar instrument, payable to 
the order of the Federal Communications Commission. The payment 
must include the NAL/Acct. No. referenced above.  Payment by 
check or money order may be mailed to Forfeiture Collection 
Section, Finance Branch, Federal Communications Commission, P.O. 
Box 73482, 525 West Monroe, 8th Floor Mailroom, Chicago, Illinois 
60661.  Payment by wire transfer may be made to ABA Number 
071000013, receiving bank Bank One, and account number 1165259.  
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. 20554.17
     
13.  IT IS FURTHER ORDERED that, a copy of this Order shall be 
sent by Certified Mail Return Receipt Requested and First Class 
Mail to Randell Owens, Portland Taxicab Company, 12624 NE Halsey, 
Portland, Oregon 97230 and its Counsel, Charles R. Williamson, 
Esq., Kell, Alterman & Runstein, LLP, 520 SW Yamhill St., Suite 
600, Portland, Oregon 97204.

                         FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                         George R. Dillon
                                                                 
Assistant Chief, Enforcement Bureau
           












_________________________

1  47 C.F.R.  1.903(a), 90.210, 90.403(e) and 90.425(a).
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200432920001 (Enf. Bur.,  Portland Office,  released January  30, 
2004).
3 45 27' 17'' north latitude and 122 33' 01'' west longitude.
4 The  Commission's  Antenna  Structure  Registration  Data  Base 
contains the geographical coordinates for each registered antenna 
structure.  The  Commission's Licensing  Data Bases  contain  the 
geographical coordinates for each license.
5 47 U.S.C.  503(b).
6 47 C.F.R.  1.80.
7 47 U.S.C.  503(b)(2)(D).
8 Section  312(f)(1) of  the Act,  47 U.S.C.   312(f)(1),  which 
applies to  violations for  which forfeiture  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).
9 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.
10 See, Eure Family Limited Partnership, 17 FCC Rcd 21,861, 21863 
 7 (2002). 
11 See Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  AT&T 
Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002). 
12 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099  7 (1994).
13 The  NAL set  forth  the following  factors: (1)  federal  tax 
returns for  the most  recent  three-year period;  (2)  financial 
statements prepared  according to  generally accepted  accounting 
practices ("GAAP");  or (3)  some  other reliable  and  objective 
documentation that accurately  reflects the petitioner's  current 
financial status.
14  See,  e.g., Dennis  Elam,  Trustee for  Bakcor  Broadcasting, 
Inc., Debtor, 11 FCC Rcd 1137 (1996) (forfeiture rescinded  after 
bankruptcy trustee was appointed and  the violator was no  longer 
associated with the subject radio stations); Interstate  Savings, 
Inc. d/b/a  ISI  Communications,  12  FCC  Rcd  2934  (CCB  1997) 
(forfeiture rescinded where  trustee was appointed  in Chapter  7 
liquidation, removing violator from operating as a common carrier 
and from involvement  in dissolution or  distribution of  assets.  
Requiring trustee  to pay  the forfeiture  would diminish  estate 
assets available  to  innocent  creditors  and  serve  no  public 
interest purpose.).
15  47 C.F.R.  0.111, 0.311, 1.80(f)(4).
16  47 U.S.C.  504(a).
17  See 47 C.F.R.  1.1914.