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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-128
)
All American Citywide Rainbow Transit, Inc. ) NAL/Acct. No.
200332380001
WNLH895 )
Long Island City, NY ) FRN: 0007-5630-75
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 8,
2002
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that All American Citywide Rainbow Transit, Inc.
(``Citywide Transit'') has apparently violated Section
90.403(a)(2) of the Commission's Rules (the ``Rules'')1, by
operating radio transmitting equipment on an unauthorized
frequency of 155.265 MHz. We conclude that Citywide Transit is
apparently liable for forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On June 28, 2002, the FCC New York Office received a
complaint of interference affecting the frequency 155.265 MHz,
from an FCC licensed user.
3. On July 8, 2002, Commission agents, using direction
finding techniques, positively identified the source of the
interference on 155.265 MHz to Citywide Transit's transmitters
located at 4-05 26th Avenue, Long Island City, NY 11102 and 11-08
30th Avenue, Long Island City, NY 11102. There was no evidence
of a Commission authorization to operate this station on 155.265
MHz in Long Island City, NY.
4. On July 16, 2002, Commission agents observed radio
operation on 155.265 MHz, and positively identified the source of
the transmission to Citywide Transit at 4-05 26th Avenue, Long
Island City, NY 11102. The agents conducted a station inspection
and determined that Citywide Transit was licensed under call sign
WNLH895 to operate only on a frequency of 155.235 MHz. The
agents notified Citywide Transit of the violation.
III. DISCUSSION
5. Section 90.403(a)(2) of the Commission's Rules requires
that licensees in the private land mobile radio services shall be
directly responsible for the proper operation and use of each
transmitter for which they are licensed. In this connection,
licensees shall exercise such direction and control as to assure
that the transmitter is being operated in a permissible manner.
A review of Commission's records showed that Citywide Transit was
granted authority under its license WNLH895 to operate only on a
frequency of 155.235 MHz at 11-08 30th Avenue, Long Island City,
NY 11102.
6. Based on the evidence before us, we find that All
American Citywide Rainbow Transit, Inc. operated radio
transmitting equipment on an unauthorized frequency of 155.265
MHz on July 8, 2002 and July 16, 2002, in willful2 and repeated3
violation of Section 90.403(a)(2) of the Rules.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy Statement'')4,
sets the base forfeiture amount for using an unauthorized
frequency at $4,000. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Communications Act of 1934, as
amended, (``Act'')5 which include 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. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a four thousand dollar ($4,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, All American Citywide Rainbow Transit, Inc. is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of four thousand dollars ($4,000) for willfully violating Section
90.403(a)(2) of the Commission's Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Commission's Rules, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, All American Citywide
Rainbow Transit, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380001 and FRN: 0007-5630-75.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332380001.
12. 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.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
14. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the [relevant Division]. Your
certification should indicate whether you, including your parent
entity and its subsidiaries, meet one of the definitions set
forth in the list provided by the FCC's Office of Communications
Business Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used for
tracking purposes only. Your response or failure to respond to
this question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the Communications
Act. If you have questions regarding any of the information
contained in Attachment A, please contact OCBO at (202) 418-0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to All American Citywide Rainbow Transit, Inc., 11-08
30th Avenue, Long Island City, NY 11102.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
_________________________
1 47 C.F.R. § 90.403(a)(2).
2 Section 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).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
447 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.