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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-064
Esperanza Gonzales d.b.a. Ivette Car Service )
KNNR573 ) NAL/Acct. No.
200432380001
Brooklyn, NY )
) FRN: 0008 9882 06
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 24,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Esperanza Gonzales d.b.a. Ivette Car
Service (``Ivette''), apparently violated Section 1.903(a) of the
Commission's Rules (the ``Rules''),1 by operating a base station
transmitter on an unauthorized frequency of 151.635 MHz, and
mobile units on an unauthorized frequency of 155.635 MHz. We
conclude that Ivette is apparently liable for a forfeiture in the
amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On May 16, 2003, a Commission agent, using a mobile
direction finding vehicle, monitored the frequency 151.635 MHz in
Brooklyn, NY, to follow-up a previous investigation concerning
operation on unauthorized frequencies in the Private Land Mobile
Radio Services. The agent determined that Ivette, located at
2958 Fulton Street, Brooklyn, NY 11207, operated a base
transmitter on a frequency of 151.635 MHz. There was no evidence
of a Commission authorization for Ivette to operate a base
station on 151.635 MHz in Brooklyn, NY.
3. On May 19, 2003, Commission agents, using a mobile
direction finding vehicle, monitored the frequency 151.635 MHz,
and again determined that Ivette, located at 2958 Fulton Street,
Brooklyn, NY 11207, operated a base station on a frequency of
151.635 MHz. The agents conducted a station inspection with
Ivette's manager, Odilio Bautist, and advised him that Ivette was
operating a base transmitter on an unauthorized frequency of
151.635 MHz, and mobile units on an unauthorized frequency of
155.635 MHz. There was no evidence of a Commission authorization
for Ivette to operate mobile units on 155.635 MHz in Brooklyn,
NY.
4. On May 20, 2003, a Commission agent, using a mobile
direction finding vehicle, monitored the frequencies 151.635 and
155.635 MHz, and again determined that Ivette operated a base
transmitter on a frequency of 151.635 MHz and mobile units on a
frequency of 155.635 MHz.
III. DISCUSSION
·
5. Section 1.903(a) of the Rules requires that ``Stations
in the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service
as set forth in this title and with a valid authorization granted
by the Commission under the provisions of this part.'' 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
Esperanza Gonzales d.b.a. Ivette Car Service was granted
authority under its license, KNNR573, to operate one base station
and 25 mobile units on a frequency of 151.775 MHz. Agents
observed the base station operating on 151.635 MHz and mobile
units operating on 155.635 MHz.
6. Based on the evidence before us, we find that Ivette
operated a base station on the unauthorized frequency of 151.635
MHz on May 16, May19, and May 20 2003, and mobile units on the
unauthorized frequency of 155.635 MHz on May19, and May 20, 2003,
in willful2 and repeated3 violation of Section 1.903(a) 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,5 (``Act'') 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
Rules,7 Ivette is hereby NOTIFIED of their APPARENT LIABILITY FOR
A FORFEITURE in the amount of four thousand dollars ($4,000) for
willfully and repeatedly violating Section 1.903(a) of the Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Ivette 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. 200432380001 and FRN: 0008 9882 06.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200432380001.
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 Spectrum Enforcement 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 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 Esperanza Gonzales d.b.a. Ivette Car Service, 2958
Fulton Street, Brooklyn, NY 11207.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - Condensed List of Small Entities, October 2002
_________________________
1 47 C.F.R. § 1.903(a).
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).
3Section 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.