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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-191
)
ServisAir ) NAL/Acct. No.
200332380005
Newark, NJ )
) FRN: 0007-6931-53
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 13,
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 ServisAir has apparently violated Section
301 of the Communications Act of 1934 (``Act''),1 as amended, by
operating a repeater station on 461.050 MHz and portable radio
transmitting equipment on 466.050 MHz. We conclude that
ServisAir is apparently liable for forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 12, 2002, the FCC New York Office, received a
complaint of interference affecting the frequency pair
461.050/466.050 MHz, from a FCC licensed user.
3. On August 23, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequency pair
461.050/466.050 MHz. The agents determined that ServisAir
located at Cargo Building 340, North Cargo Area, Newark
International Airport, Newark, NJ 07114, was operating a repeater
station on 461.050 MHz and portable transceivers on 466.050 MHz.
There was no evidence of a Commission authorization to operate
this station on frequency pair 461.050/466.050 MHz at Newark
International Airport, Newark, NJ.
4. On August 26, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequency pair
461.050/466.050 MHz. The agents again determined that ServisAir
was operating on the frequency pair 461.050/466.050 MHz. The
agents conducted a station inspection and advised Jeff Winans,
general manager of ServisAir, that the base station was operating
on an unauthorized frequency pair of 461.050/466.050 MHz.
5. On August 27, 2002, a Commission agent again spoke to
Jeff Winans, general manager, and also Brian O'Dell, vice
president of ServisAir, and informed them that ServisAir, located
at Newark International Airport, was operating on an unauthorized
frequency pair of 461.050/466.050 MHz. The New York Office also
sent a Warning Letter for unlicensed operation, by First Class
and Certified Mail Return Receipt Requested, to ServisAir.
6. On August 28, 2002, Commission agents, using a mobile
direction finding vehicle, monitored the frequency pair
461.050/466.050 MHz. The agents again determined that ServisAir
was operating on the frequency pair 461.050/466.050 MHz.
7. On September 19, 2002, ServisAir submitted a reply to
the Warning Letter, admitting using the wrong frequencies.
III. DISCUSSION
8. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy or communications or signals by radio within the United
States except under and in accordance with the Act and with a
license granted under the provisions of the Act. A review of
Commission's records showed that there was no evidence of a
Commission authorization to operate this station on frequency
pair 461.050/466.050 MHz at Newark International Airport, Newark,
NJ.
9. Based on the evidence before us, we find that,
ServisAir, operated a repeater station on 461.050 MHz and
portable radio transmitting equipment on 466.050 MHz on August
23, 2002, August 26, 2002, and August 28, 2002, in willful2 and
repeated3 violation of Section 301 of the Act.
10. 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 operation without an
instrument of authorization at $10,000. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the 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 ten thousand dollar ($10,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules7, ServisAir is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully violating Section 301 of the Act.
12. 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, ServisAir SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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. 200332380005 and FRN: 0007-6931-53.
14. 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. 200332380005.
15. 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.
16. 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
17. 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 Technical and Public Safety
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.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to ServisAir, 18430 Air Mail Road, Houston, TX 77032,
and a copy to ServisAir, Cargo Building 340, North Cargo Area,
Newark International Airport, Newark, NJ 07114.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
_________________________
1 47 U.S.C. § 301.
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).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.