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 )
Caprice Car Service II ) File No.: EB-04-NY-018
) NAL/Acct. No. 200432380014
Flushing, New York )
) FRN: 0005558697
Adopted: December 23, 2004 Released:
December 28, 2004
By the Assistant Chief, Enforcement Bureau:
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
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
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
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
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,
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,
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,
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.