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


In the Matter of                 )
                                )
Dave Mitchell                    )    File Number EB-04-NY-030
                                )
WPEH807                          )    NAL/Acct No. 200432380015
Brooklyn, New York               )
                                )    FRN 0006524631
                                )
                                )


                        FORFEITURE ORDER

   Adopted:  January 18, 2005           Released:  January 21, 
2005

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 Dave Mitchell, (``Mitchell''), licensee of station 
WPEH807, for a business operating as Community Car Service Corp. 
(``Community''), for willful and repeated violation of Section 
1.903(a) of the Commission's Rules (``Rules'').1  The noted 
violation involves Mitchell's operation of a base station 
transmitter and mobile units on an unauthorized frequency.

     2.   On June 28, 2004, the District Director of the 
Commission's New York Field Office (``New York Office'') released 
a Notice of Apparent Liability for Forfeiture (``NAL'') proposing 
a forfeiture in the amount of four thousand dollars ($4,000) to 
Mitchell for the noted violation.2  Mitchell filed a response to 
the NAL on July 19, 2004.3

II.  BACKGROUND

     3.   On February 13, 2004, a Commission agent, using a 
mobile direction-finding vehicle, monitored the frequency 151.790 
MHz in Bronx, New York to follow up on a previous investigation 
concerning operation on unauthorized frequencies in the Private 
Land Mobile Radio Service.  The agent determined that Mitchell, 
located at 3429 Eastchester Road, Bronx, New York, operated a 
base transmitter and mobile units on the frequency 151.790 MHz.  
Based on a review of Commission databases, the agent determined 
that neither Mitchell nor Community had a Commission 
authorization to operate a base station and mobile units on 
151.790 MHz in Bronx, New York.  Rather, Mitchell was authorized 
to operate a base station and transmitter units on 151.805 MHz.  
On February 17, 2004, the New York Office sent Mitchell a Warning 
Letter via First Class Mail and Certified Mail, Return Receipt 
Requested, for unlicensed operation on the frequency 151.790 MHz.  
The New York Office received a reply to the Warning Letter on 
February 25, 2004, in which Mitchell acknowledged the 
unauthorized operation on 151.790 MHz and indicated his plan to 
change the frequency to 151.805 MHz the week of February 23, 
2004.  The agents conducted a follow-up investigation on March 1, 
2004, and determined that Mitchell continued to operate on 
151.790 MHz without a license in Bronx, New York.

     4.   In response to the NAL, Mitchell states that he now 
operates the base transmitter and mobile units on 151.805 MHz.  
As a result, Mitchell claims that the only violation committed 
was the failure to begin operating on an authorized frequency in 
a timely manner and therefore operation on the frequency 151.790 
MHz should not be considered ``willful and illegal.''  Mitchell 
states that he completed the change to the new frequency on March 
1, 2004, the date on which the Commission agent conducted the 
follow-up investigation.  In support of this statement, Mitchell 
submits a letter from Tecno Radio Communications, Inc. (``Tecno 
Radio''), Mitchell's new radio vendor, stating that it completed 
the change from frequency 151.790 MHz to 151.805 MHz on March 1, 
2004.  Finally, Mitchell requests a payment plan in the event 
that the forfeiture amount is not reduced or cancelled.

III.      DISCUSSION 

     5.   The forfeiture amount in this case was proposed in 
accordance with Section 503(b) of the Communications Act of 1934, 
as amended (``Act''),4 Section 1.80 of the Rules,5 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) 
(``Policy Statement'').  In examining Mitchell'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.6

     6.   Section 1.903(a) of the Rules requires that stations in 
the Wireless Radio Services be used and operated only with a 
valid authorization granted by the Commission.  On two occasions, 
an FCC agent determined that Mitchell operated a base transmitter 
and mobile units on 151.790 MHz.  A review of Commission records 
showed no evidence that Mitchell or Community had a Commission 
authorization to operate a base transmitter and mobile units on 
151.790 MHz.

     7.   Mitchell claims that the only violation committed was 
his failure to timely change to an authorized frequency and that 
his actions therefore were not ``willful and illegal.''  We 
disagree.  For a violation to be willful, it must be committed 
consciously and deliberately, irrespective of any intent to 
violate the Rules.7  An FCC agent determined on two occasions 
that Mitchell operated on an unauthorized frequency and Mitchell 
does not dispute this fact.  Even after Mitchell received the 
Warning Letter, he continued to operate on 151.790 MHz without a 
valid Commission authorization until March 1, 2004, the day his 
equipment was converted to the authorized frequency.  He did so 
notwithstanding the statement in the Warning Letter that 
``[o]peration of the unlicensed transmitter must cease 
immediately.''8  Although Mitchell states that he took immediate 
steps to modify the equipment to the authorized frequency, 
Mitchell admits that he did not do so until after he received the 
Warning Letter from the Commission.  Remedial actions taken after 
the Commission's inspection, notice or action have not been 
considered a mitigating factor warranting a reduction of a 
forfeiture.9    

     8.   We have examined Mitchell's response to the NAL 
pursuant to the statutory factors above and in conjunction with 
the Forfeiture Policy Statement.  As a result of our review, we 
conclude that Mitchell willfully10 and repeatedly11 violated 
Section 1.903(a) of the Rules.  We find no basis for cancellation 
or reduction of the $4,000 forfeiture proposed for this 
violation.  If Mitchell still wishes to request an installment 
plan, such request should be submitted to the address set forth 
in paragraph 10 below.

IV.  ORDERING CLAUSES

     9.   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,12  Dave Mitchell IS LIABLE FOR A MONETARY FORFEITURE 
in the amount of four thousand dollars ($4,000) for willful and 
repeated violation of Section 1.903(a) of the Rules.

     10.  Payment of the forfeiture shall be made in the manner 
provided for in Section 1.80 of the Rules13 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.14  Payment may be made by credit card through the 
Commission's Credit and Debt Management Center at (202) 418-1995 
or 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 must include the FCC Registration Number 
(FRN) and the NAL/Acct. No. referenced in the caption.  Payment 
by overnight mail may be sent to BankOne/LB73482, 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.  The payment must include 
the FCC Registration Number (FRN) and the NAL/Acct. No. 
referenced in the caption.  Requests for full payment under an 
installment plan should be sent to:  Chief, Credit and Debt 
Management Center, 445 12th Street, S.W., Washington, D.C. 
20554.15

     11.  IT IS FURTHER ORDERED that copies of this Order shall 
be sent by Certified Mail Return Receipt Requested and by First 
Class Mail to Dave Mitchell, 3429 Eastchester Road, Bronx, New 
York 10469.

                        FEDERAL COMMUNICATIONS COMMISSION



                         George R. Dillon
                         Assistant Chief, Enforcement Bureau
_________________________

147 C.F.R. § 1.903.
2Notice of  Apparent  Liability  for  Forfeiture,  NAL/Acct.  No. 
200432380015 (Enf.  Bur.,  New  York Office,  released  June  28, 
2004).
3We note  that the  response was  signed ``Sadie  Colon for  Dave 
Mitchell.''  According to the response, Mitchell is ill and Sadie 
Colon is acting on his behalf.
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
7See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
8We note that, because the  violation at issue here is  repeated, 
we need not even show willful.  See Section 503(b)(1) of the Act, 
47  U.S.C.  §  503(b)(1)  (violator  liable  for  forfeiture   if 
violation is willful or repeated).
9See Forest Electric Corporation, DA 04-3345, 2004 WL 2403744 ¶ 8 
(Enf. Bur. 2004), citing South Central Communications Corp., 18 
FCC Rcd 700, 702-703 ¶ 9 (Enf. Bur. 2003); Northeast Utilities, 
17 FCC Rcd 4115, 4117 ¶ 13 (Enf. Bur. 2002).

10Section 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', 
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 or any rule or regulation of the Commission authorized 
by this Act...."  See Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
11 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which 
also applies to violations for which forfeitures are assessed 
under Section 503(b) of the Act, provides that "[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.''  
1247 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).
1347 C.F.R. §1.80.
1447 U.S.C. § 504(a).
1547 U.S.C. § 1.1914.