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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-PA-
Best Wok ) NAL/Acct. No.
Westville, New Jersey ) FRN: 0009-3455-62
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 26,
By the District Director, Philadelphia Office, Enforcement
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Best Wok has apparently violated Section
301 of the Communications Act of 1934, as amended (the ``Act'').1
The violation occurred because Best Wok operated radio
transmitting equipment on the frequency 145.8376 MHz without a
license issued by the FCC. We conclude that Best Wok is
apparently liable for a forfeiture in the amount of ten thousand
2. On September 4, 2001, the FCC Enforcement Bureau
received information that Best Wok, a restaurant in Westville,
New Jersey, was operating radio transmitting equipment in the Two
Meter Amateur Radio Service Band on the frequency 145.835 MHz
without a license. On October 16, 2001, the FCC issued a letter
to Best Wok at 1070 Delsea Drive, Westville, New Jersey 08093.
The letter warned the addressee that it was in violation of
Section 301 of the Act for operating radio transmitting equipment
in the Two-Meter Amateur Radio Service Band (145.83 MHz) without
a license and explained the penalties for continued operation
including a monetary forfeiture. According to the certified mail
return receipt from the Post Office, Best Wok received the
warning letter on October 25, 2001.
3. On October 16, 2002, the FCC Enforcement Bureau
received information that Best Wok was again operating on the
frequency 145.835 MHz without a license. Therefore, on January
22, 2003, the FCC issued another letter to Best Wok warning that
it was in violation of Section 301 of the Act for operating radio
transmitting equipment in the Two-Meter Amateur Radio Service
Band (145.835 MHz) without a license. According to the certified
mail return receipt from the Post Office, Best Wok received the
warning letter on January 27, 2003.
4. During the morning of February 28, 2003, an FCC agent
with the Philadelphia Office drove to the Westville, New Jersey
area to determine if Best Wok was operating radio transmitting
equipment on the frequency 145.835 MHz. At approximately 10:45
a.m., the agent began monitoring a constant radio signal on or
near the frequency 145.835 MHz. At 11:10 a.m., the agent used
direction finding techniques to positively determine that the
source of the transmissions was located at Best Wok, 1070 Delsea
Drive, Westville, New Jersey.
5. At 11:30 a.m. on February 28, 2003, the agent entered
Best Wok and inspected the radio transmitting equipment in the
presence of the restaurant manager, Sae C. Hauwo. The agent
found that Best Wok was operating a long distance cordless
telephone system. The system was comprised of a base unit that
was located under the counter of the restaurant and a mobile unit
that was in Hauwo's vehicle. There were no identifying markings
on the mobile unit but the base unit was marked with the Model
Number GSM WLT-988. The FCC agent used frequency-measuring
equipment to determine that the base unit actually operated on
the frequency 145.8376 MHz and not the frequency 145.835 MHz as
specified in the complaints. Hauwo stated that he installed the
long range cordless telephone system so that his employees could
answer customers' telephone calls while making deliveries in
their vehicles. Hauwo stated that he purchased the long range
cordless telephone system in another country and brought it into
the United States to operate at the restaurant.
6. Hauwo and Best Wok were unable to provide the FCC agent
with a license authorizing the operation of the radio
transmitting equipment. Hauwo acknowledged that Best Wok
received the October 16, 2001 unlicensed warning letter from the
FCC Enforcement Bureau. Hauwo stated that when the restaurant
received the letter, it ceased operation of the long range
cordless telephone system and purchased an alternative set of
radios from Radio Shack that operated on the Multi-Use Radio
Service frequency 154.600 MHz. He said that because the
alternative radios did not provide sufficient coverage, Best Wok
began operating the long distance cordless telephone system
7. Section 301 of the Act states that no person shall use
or operate any apparatus for the transmission of energy or
communications or signals by radio except under and in accordance
with this Act and with a license in that behalf granted under the
provisions of this Act. On February 28, 2003, Best Wok operated
radio transmitting equipment on the Two-Meter Amateur Radio
Service frequency 145.8376 MHz. Neither Best Wok nor any of its
employees held a license to operate a station in the Amateur
Radio Service Band.
8. Based on the evidence before us, we find that Best Wok
willfully2 violated Section 301 of the Act. 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
operating radio transmitting equipment without a license 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. 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
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,6 (``Rules'') Best Wok is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for operating radio-transmitting
equipment on the frequency 145.8376 MHz without a license.
10. 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, Best Wok 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. 200432400001 and FRN: 0009-3455-62.
12. The response, if any, 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. 200432400001 and FRN:
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
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 Receivables 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 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 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 Best Wok, 1070 Delsea Drive, Westville, New
John E. Rahtes
Attachment A: Condensed List of Small Entities
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 47 C.F.R. § 1.80.
4 47 U.S.C § 503(b)(2)(D).
5 47 U.S.C § 503(b).
6 47 C.F.R. §§ 0.111, and 0.311.
7 See 47 C.F.R. § 1.1914.