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

                              )
In the Matter of              )
                              )    
Caprice Car Service II        )    File No.:  EB-04-NY-018
WPDF849                       )    
                              )    NAL/Acct. No.  200432380014
Flushing, New York            )    
                              )    FRN:  0005558697


                        FORFEITURE ORDER

Adopted:  December 23, 2004                       Released:  
December 28, 2004

By the Assistant 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 Caprice Car Service II 
          (``Caprice'') for willful and repeated violation of 
          Section 1.903(a) of the Commission's Rules 
          (``Rules'').1  The noted violations involve Caprice's 
          operation of mobile units on an unauthorized 
          frequency.
 
II.  BACKGROUND

     2.   On or about January 29, 2004, the New York Office 
          received an interference complaint from a licensed 
          user in the Wireless Radio Service.  The complainant 
          identified Caprice, located in Flushing, New York, as 
          the entity responsible for the interference.

     3.   On February 4, 2004, a Commission agent conducted an 
          inspection of Caprice in Flushing, New York and 
          determined that Caprice operated a licensed base 
          station on frequency 154.490 MHz.  The agent also 
          determined that Caprice operated mobile units on 
          frequency 159.950 MHz.  A search of the Commission's 
          databases found no evidence of a Commission 
          authorization for Caprice to operate mobile units on 
          159.950 MHz in Flushing, New York.  The agent advised 
          the Caprice dispatcher that the mobile units were 
          operating on an unauthorized frequency.

     4.   On February 5, 2004, Commission agents, using a mobile 
          direction-finding vehicle, monitored the frequency 
          159.950 MHz in Flushing, New York and again determined 
          that Caprice was operating mobile units on the 
          unauthorized frequency of 159.950 MHz.  The agents 
          advised Caprice's owner, Hernan Cardenas, that the 
          mobile units were operating on an unauthorized 
          frequency.

     5.   On June 14, 2004, the District Director of the New 
          York Office issued a NAL, finding that Caprice 
          willfully2 and repeatedly3 violated Section 1.903(a) 
          of the Rules by operating its mobile unit on an 
          unauthorized frequency.4  In its response, Caprice 
          apologizes for using the wrong frequency and claims 
          that ``the copy of the license we had was not clear 
          and we gave the technician the wrong information.''  
          Caprice seeks a reduction in the forfeiture amount 
          based on the fact that, immediately upon learning that 
          its mobile units were operating on an unauthorized 
          frequency, it applied for authorization to operate on 
          a different frequency.  In a separate note attached to 
          its response, Caprice also states that it cannot 
          afford to pay $4,000 and requests that the Commission 
          consider reducing the forfeiture amount on that basis 
          as well.

III.      DISCUSSION

     6.   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 Rules6, 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) (``Forfeiture Policy Statement'').  
          In examining Caprice'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.  

     7.   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 two occasions, FCC agents determined that Caprice 
          was operating mobile units on the frequency 159.950 
          MHz.  A review of Commission records showed that 
          Caprice did not have Commission authorization to 
          operate mobile units on that frequency in Flushing, 
          New York.  

     8.   Caprice does not challenge the findings in the NAL 
          that it willfully and repeatedly violated Section 
          1.903(a) of the Rules.  Rather, Caprice seeks a 
          reduction based on the fact that it immediately 
          applied for a license to operate on a new frequency 
          immediately after it was notified by the FCC that its 
          mobile units were operating on an unauthorized 
          frequency.  Although Caprice's action is commendable, 
          the Commission has repeatedly stated that remedial 
          measures taken to correct a violation are expected 
          and, as such, are not mitigating factors warranting 
          reduction of a forfeiture.7

     9.   Similarly, we decline to reduce the forfeiture amount 
          based on Caprice's alleged inability to pay because 
          Caprice's claim is not accompanied by tax returns or 
          other documentation.  As 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: (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.8  
          Any claim of inability to pay must specifically 
          identify the basis for the claim by reference to the 
          financial documentation submitted.9  Accordingly, we 
          find that there is no basis to reduce the assessed 
          forfeiture amount due to inability to pay.

     10.  We have examined Caprice's response to the NAL pursuant 
to the statutory factors above as well as in conjunction with the 
Policy Statement.  As a result of our review, we conclude that a 
four thousand dollar ($4,000) forfeiture is warranted.

IV.  ORDERING CLAUSES    

     10.  ACCORDINGLY, IT IS ORDERED that, pursuant to Section 
          503(b) of the Act10 and Sections 0.111, 0.311 and 
          1.80(f)(4) of the Rules,11 Caprice Car Service II IS 
          LIABLE FOR A MONETARY FORFEITURE in the amount of 
          $4,000 for willfully and repeatedly violating Section 
          1.903(a) of the Rules.

     11.  Payment of the forfeiture shall be made in the manner 
          provided for in Section 1.80 of the Rules within 
          thirty (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 by check or money order may be mailed 
          to Forfeiture Collection Section, Finance Branch, 
          Federal Communications Commission, P.O. Box 73482, 
          Chicago, Illinois 60673-7482.  Payment by overnight 
          mail may be sent to Bank One/LB 73482, 525 West 
          Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
          Payment by wire transfer may be made to ABA Number 
          071000013, receiving bank Bank One, and account number 
          1165259.  The payment should note NAL/Acct. No. 
          200432360003, and FRN 0010680940.  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

     12.  IT IS FURTHER ORDERED that a copy of this Order shall 
          be sent by First Class Mail and Certified Mail Return 
          Receipt Requested to Caprice Car Service II, 135-16 
          37th Avenue, Flushing, New York 11354. 


                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         George R. Dillon
                         Assistant Chief, Enforcement Bureau
_________________________

147 C.F.R. 1.903(a).

2Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which applies 
to 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 (1991).  

3As 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); See also Western Wireless Corporation, 18 FCC 
Rcd 10319 n.56 (2003).

4 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432380014 (Enf. Bur., New York Office, released June 14, 
2004).

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

6 47 C.F.R.  1.80.

7 See, e.g., AT & T Wireless Services, Inc., 17 FCC Rcd 21866, 
21871 (2002).

8 NAL at para. 12.  

9 See Policy Statement, 12 FCC Rcd at 17106-17107; See also 
Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003)(finding 
that the Commission's rules require that any request to reduce or 
cancel a forfeiture based on a claim of inability to pay must 
include detailed and relevant financial documentation).

1047 U.S.C.  503(b).

1147 C.F.R.  0.111, 0.311, 1.80(f)(4).

1247 U.S.C.  504(a).

13See 47 C.F.R.  1.1914.