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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-157
)
Parkway Luxury Ride Inc. ) NAL/Acct. No.
200432380010
Mt. Vernon, NY )
) FRN: 00101 1877 55
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 8, 2004
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Parkway Luxury Ride Inc. (``Parkway'') has
apparently violated Section 301 of the Communications Act of 1934
as amended, (``Act''),1 by operating unlicensed radio
transmitters on frequencies of 157.490 MHz and 155.265 MHz. We
conclude that Parkway is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 29, 2003, the FCC New York Office received a
complaint from a FCC licensed user of interference to the
frequency 155.265 MHz.
3. On September 3, 2003, a Commission agent using a mobile
direction finding vehicle, monitored the frequency, 155.265 MHz,
and positively identified the source of transmissions to Parkway,
located at 155 Mt. Vernon Avenue, Mt. Vernon, NY 10550. There
was no evidence of a Commission authorization for Parkway to
operate this station on 155.265 MHz in Mt. Vernon, NY.
4. On September 4, 2003, a Commission agent again
monitored the frequency 155.265 MHz and positively identified the
source of transmissions to Parkway located at 155 Mt. Vernon
Avenue, Mt. Vernon, NY 10550. The agent advised the dispatcher
on duty that Parkway was operating their base station and mobile
units on an unauthorized frequency of 155.265 MHz. There was no
evidence of a Commission authorization for Parkway to operate a
base station and mobile units on 155.265 MHz in Mt. Vernon, NY.
5. On September 5, 2003, Commission agents monitored the
frequency 155.265 MHz and positively identified transmissions to
Parkway. The agents, conducted a station inspection with
Parkway's owner Henry Mensah present, and confirmed that the base
station was operating on a frequency of 155.265 MHz. The agents
advised Mr. Mensah that a station license is required for station
operation. There was no evidence of a Commission authorization
for Parkway to operate a base station and mobile units on 155.265
MHz in Mt. Vernon, NY.
6. On January 2, 2004, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency, 157.490 MHz,
in Mt. Vernon, NY in connection with an investigation concerning
the use of unauthorized frequencies in the Private Land Mobile
Radio Services. The agent positively identified the source of
transmissions on 157.490 MHz to Parkway, located at 155 Mt.
Vernon Avenue, Mt. Vernon, NY 10550. There was no evidence of a
Commission authorization for Parkway to operate this station on
157.490 MHz in Mt. Vernon, NY.
7. On January 7, 2004, Commission agents using a mobile
direction finding vehicle, monitored the frequency, 157.490 MHz
and positively identified the source of transmissions to Parkway,
located at 155 Mt. Vernon Avenue, Mt. Vernon, NY 10550. The
agents conducted a station inspection with Parkway's dispatcher
and observed the base transmitter in use. The agents advised the
dispatcher that Parkway was operating on an unauthorized
frequency of 157.490 MHz. There was no evidence of a Commission
authorization for Parkway to operate this station on 157.490 MHz
in Mt. Vernon, NY.
8. On January 8, 2004, a Commission agent using a mobile
direction finding vehicle, monitored the frequency, 157.490 MHz,
in Mt. Vernon, NY, and positively identified the source of
transmissions to Parkway, located at 155 Mt. Vernon Avenue, Mt.
Vernon, NY 10550. There was no evidence of a Commission
authorization for Parkway to operate this station on 157.490 MHz
in Mt. Vernon, NY.
III. DISCUSSION
9. Section 301 of the Acts 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.
10. Based on the evidence before us, we find that Parkway
operated a base station and mobile units on a frequency of
155.265 MHz on September 3, September 4, and September 5, 2003;
and on a frequency of 157.490 MHz on January 2, January 7 and
January 8, 2004, in willful2 and repeated3 violation of Section
301 of the Act.
11. 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
12. 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, Parkway is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for willfully and repeatedly violating Section 301 of
the Act.
13. 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, Parkway SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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. 200432380010 and FRN: 00101 1877 55.
15. 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. 200432380010.
16. 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.
17. 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
18. 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.
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Parkway Luxury Ride, Inc., 155 Mt. Vernon Avenue,
Mt. Vernon, NY 10550.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
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).
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.
547 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.