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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-198
)
Blue Ridge Erectors, Inc. ) NAL/Acct. No.
200332380007
Bangor, PA )
) FRN: 0007-7917-42
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 27,
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 Blue Ridge Erectors, Inc. (``Blue Ridge'')
has apparently violated Section 301 of the Communications Act of
1934 (``Act''),1 as amended, by operating radio transmitting
equipment on 467.250 MHz. We conclude that Blue Ridge Erectors,
Inc. is apparently liable for forfeiture in the amount of five
thousand dollars ($5,000).
II. BACKGROUND
2. On August 27, 2002, the FCC New York Office received a
complaint of interference affecting the frequency 467.250 MHz,
from an FCC licensed user.
3. On August 28, 2002, Commission agents, using direction-
finding techniques, positively located the source of the
interference to Blue Ridge, operating at a waterside construction
site near Hudson Street in Jersey City, NJ 07302. The agents
determined that Blue Ridge operated portable radio transmission
equipment on 467.250 MHz. There was no evidence of a Commission
authorization for this operation in Jersey City, NJ.
4. On September 4, 2002, the New York Office sent a
Warning Letter for unlicensed operation, by First Class and
Certified Mail Return Receipt Requested, to Blue Ridge.
5. On September 18, 2002, the New York Office received a
letter from Blue Ridge, in response to the Warning Letter dated
September 4. In the letter, Blue Ridge acknowledged that they
had no FCC license for their radios used at the job site near
Hudson St. in Jersey City, NJ.
III. DISCUSSION
6. 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 the frequency
467.250 MHz in Jersey City, NJ.
7. Based on the evidence before us, we find that Blue
Ridge operated radio transmission equipment on 467.250 MHz on
August 28, 2002 without a Commission authorization in willful2
violation of Section 301 of the Act.
8. 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'')3,
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,4
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. In this case, Blue
Ridge has no history of prior offenses, and ceased operating the
unlicensed radios after Commission agents warned them of the
violation. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a five thousand dollar ($5,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act5 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules6, Blue Ridge Erectors, Inc. is hereby NOTIFIED
of their APPARENT LIABILITY FOR A FORFEITURE in the amount of
five thousand dollars ($5,000) for willfully violating Section
301 of the Act.
10. 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, Blue Ridge Erectors, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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. 200332380007 and FRN: 0007-7917-42.
12. 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. 200332380007.
13. 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.
14. 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. 20554.7
15. 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.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Blue Ridge Erectors, Inc., P.O. Box 158, Bangor, PA
18013.
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).
347 C.F.R. § 1.80.
4
47 U.S.C. § 503(b)(2)(D).
547 U.S.C. § 503(b).
647 C.F.R. §§ 0.111, and 0.311.
7 See 47 C.F.R. § 1.1914.