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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-03-PA-029
File No. EB-03-PA-029 NAL/Acct. No. 200432400001
) FRN: 0009-3455-62
Pang Cheng, d/b as Best Wok1
NAL/Acct. No. 200432400001
Westville, New Jersey
MEMORANDUM OPINION AND ORDER
Adopted: February 7, 2005 Released: February 9,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by Pang Cheng, d/b as
Best Wok (``Best Wok''), and we affirm the Forfeiture Order
issued May 21, 2004, in the amount of ten thousand dollars
($10,000) for willful violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').2 At the time
of the noted violation Best Wok owned a restaurant located at
1070 Delsea Drive, Westville, New Jersey. The noted violation
involves Best Wok's operation of radio transmitting equipment on
the frequency 145.8376 MHz without a license issued by the
2. The Enforcement Bureau (``Bureau') received a complaint
alleging that Best Wok was operating radio transmitting equipment
on the two meter amateur frequency 145.835 MHz without a license.
On October 16, 2001, and January 22, 2003, the Bureau sent Best
Wok letters warning that operation of radio transmitting
equipment without a license is in violation of Section 301 of the
Act and could subject it to penalties. The certified mail return
receipts indicate that Best Wok received the warning letters on
October 25, 2001, and January 27, 2003, respectively.
3. On February 28, 2003, an agent from the Commission's
Philadelphia, Pennsylvania, field office (``Philadelphia
Office'') drove to the Westville, New Jersey, area to determine
whether Best Wok was operating radio transmitting equipment
without a license. At approximately 10:45 a.m., the agent began
monitoring a constant radio signal on or near 145.835 MHz. At
11:10 a.m., the agent used direction finding techniques to
determine that the source of the transmissions was the Best Wok
restaurant at 1070 Delsea Drive, Westville, New Jersey.
4. At 11:30 a.m. on February 28, 2003, the agent entered
the Best Wok restaurant and inspected the radio transmitting
equipment in the presence of the restaurant manager, Mr. Sae C.
Hauwo, who admitted that Best Wok was operating a long range
cordless telephone system. The system included a base unit at
the restaurant and a mobile unit in Mr. Hauwo's vehicle. The
agent used frequency-measuring equipment to determine that the
base unit was transmitting on 145.8376 MHz. Mr. Hauwo stated
that neither Best Wok nor any of its employees had a license to
operate the radio transmitting equipment. Additionally, Mr.
Hauwo asserted that, when Best Wok received the October 16, 2001,
warning letter, it ceased operation of the long range cordless
telephone system and purchased another system. Mr. Hauwo stated
further that Best Wok resumed operation of the long range
cordless telephone system because the other system did not
provide sufficient coverage.
5. On February 26, 2004, the Philadelphia Office issued a
NAL in the amount of $10,000 to Best Wok for unlicensed operation
on 145.8376 MHz. After Best Wok failed to respond to the NAL,
the Bureau issued Best Wok a Forfeiture Order in the amount of
$10,000 for that violation. In its petition for
reconsideration, Best Wok requests cancellation or reduction of
the forfeiture. Best Wok argues that its violation was
unintentional and minor, that it has corrected the violation,
that its failure to respond to the NAL was unintentional, that it
has no prior violations and that Best Wok is now out of business
and is unable to pay the forfeiture.
6. We reject Best Wok's claim that its unlicensed
operation was unintentional. Best Wok contends that it purchased
its radio apparatus upon the representation that its use in Best
Wok's business would be lawful and that it discontinued operation
of that radio apparatus when it received the first warning letter
from the FCC. Best Wok further claims that ``a person or persons
unknown'' reconnected Best Wok's base station and operated it
without Best Wok's knowledge or consent. Best Wok's argument is
not credible in light of the FCC agent's determination that the
radio apparatus was transmitting from the Best Wok restaurant on
February 28, 2003, notwithstanding two prior warnings from
Commission staff, and Mr. Hauwo's statement on February 28, 2003,
that Best Wok resumed operation of its long range cordless
telephone system because its other communications system did not
provide sufficient coverage.
7. Best Wok argues its unlicensed operation was a
``minor'' violation because it did not use its radio apparatus as
a two meter amateur station and caused only ``minimal''
interference to the amateur service. We do not agree. Best
Wok's unlicensed operation generated a number of complaints from
licensed amateurs that Best Wok was operating its station on two
meter frequencies assigned to the amateur service. Furthermore,
Best Wok continued its unauthorized operation even after
receiving written warnings on October 25, 2001, and January 27,
2003. Any use of amateur service frequencies for business
communications creates a great potential for harmful interference
to authorized amateur service communications. We must take
strong action against such use because failure to do so would
only encourage others to engage in the same conduct.
8. No mitigation is warranted on the basis of Best Wok's
correction of the violation. As the Commission stated in Seawest
Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), ``corrective action
taken to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures
9. Best Wok's failure to respond to the NAL is not at
issue in this proceeding. Therefore, we need not address Best
Wok's assertion that its failure to respond to the NAL was
10. Best Wok asserts that it has no prior violations of the
Act. However, we can not find that Best Wok has a history of
overall compliance because Best Wok is not a Commission licensee
and, therefore, has no history with the Commission upon which a
history of overall compliance finding can be based.4
11. Best Wok asserts that it is unable to pay the proposed
forfeiture. 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.5 However, the only financial
documentation provided by Best Wok is Schedule C (profit and loss
statement) from its 2003 federal income tax return. This
information is not a sufficient basis on which to assess Best
Wok's ability to pay.6 Accordingly, in the absence of sufficient
information to support a decision to the contrary, we decline to
cancel or reduce the proposed forfeiture on the basis of
inability to pay.
12. We have considered the forfeiture amount and we have
examined Best Wok's petition for reconsideration pursuant to the
statutory factors prescribed by Section 503(b)(2)(D) of the Act,7
and in conjunction with the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines,8 as well. As a result of
our review, we conclude that Best Wok willfully violated Section
301 of the Act and find that neither cancellation nor reduction
of the monetary forfeiture is appropriate.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act9 and Section 1.106 of the Rules,10 Best Wok's
petition for reconsideration of the Forfeiture Order IS DENIED
and the Forfeiture Order IS AFFIRMED.
14. 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.11
Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FRN
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, 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. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
15. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Pang Cheng, d/b as Best Wok,. 1070 Delsea Drive,
Westville, New Jersey 08093, and to its counsel, Neil I.
Sternstein, Esq., Five Aberdeen Place, Woodbury, New Jersey
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 The Notice of Apparent Liability for Forfeiture(``NAL''),
NAL/Acct No. 200432400001 (Enf. Bur., Philadelphia Office,
released February 26, 2004) and the Forfeiture Order, 19 FCC Rcd
8939 (Enf. Bur. 2004), were captioned ``Best Wok.'' Information
submitted with the petition for reconsideration indicates that
Best Wok is a sole proprietorship business owned by Pang Cheng.
According, we have recaptioned this matter as ``Pang Cheng, d/b
as Best Wok.''
2 47 U.S.C. § 301.
3 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
4 See Timothy J. Massett, 19 FCC Rcd 9258 (Enf. Bur. 2004) and
Odino Joseph, 18 FCC Rcd 16522 (Enf. Bur. 2003).
5 NAL at para. 13.
6 The Commission has long recognized that gross revenues are the
primary indicator of ability to pay a forfeiture. See PJB
Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(finding that gross receipts are a ``very useful yardstick'' in
analyzing a company's financial condition for forfeiture
purposes). In order to determine Best Wok's ability to pay from
its income tax returns, we need its complete tax returns from the
most recent three year period. It is not sufficient to provide
only Schedule C because that schedule includes only revenues from
Best Wok's restaurant business and not any other income or
revenues of Best Wok, including income or revenues of Mr. Cheng.
7 47 U.S.C. § 503(b)(2)(D).
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 405.
10 47 C.F.R. § 1.106.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.