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 )
Dave Mitchell ) File Number EB-04-NY-030
WPEH807 ) NAL/Acct No. 200432380015
Brooklyn, New York )
) FRN 0006524631
Adopted: January 18, 2005 Released: January 21,
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 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
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.
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
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
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.
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
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,
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.