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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 International Airport )
Newark, New Jersey ) FRN No.: 0007693153
FORFEITURE ORDER
Adopted: July 27, 2004 Released: July 29, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8000) to Servisair for willful and repeated violation of
Section 301 of the Communications Act of 1934 (``Act'').1 The
noted violation involves Servisair's operating radio
transmitting equipment without a license on the frequency pair
461.050/466.050 MHz.
2. On November 13, 2002, the Commission's New York
District Office (``New York Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Servisair for a
forfeiture in the amount of ten thousand dollars ($10,000).2
Servisair filed a response to the NAL on December 11, 2002.
II. BACKGROUND
3. On August 12, 2002, the New York Office received a
complaint of interference affecting the frequency pair
461.050/466.050 MHz. On August 23 and 26, 2002, agents from the
New York Office, using a mobile direction finding vehicle,
monitored the frequency pair in question. The agents determined
that Servisair was operating on the frequency pair at the Newark
International Airport, Newark, N.J. The agents further
determined that Servisair was not licensed for operations on
461.050/466.050 MHz at that location. On August 26 and 27,
2002, a New York Office agent spoke to representatives of
Servisair, including a vice president of the company, and
informed them of the violation. In addition, the New York
Office sent Servisair a Warning Letter on August 27, 2002, by
First Class Mail and Certified Mail, Return Receipt Requested,
informing Servisair that it was operating without a license,
outlining the penalties for such operations (including a fine),
and directing Servisair to terminate the unlicensed operation
immediately. On August 28, 2002, agents from the New York
Office again monitored the frequency pair using a mobile
direction finding vehicle, and determined that Servisair
continued its unlicensed operation.
4. Servisair responded to the Warning Letter on
September 19, 2002, explaining that the company had just taken
over the cleaning contract with Continental Airlines and had
purchased its repeater station and portable radio transmitting
equipment from the previous contractor. Servisair contends that
it was informed that the license transfer would be made on its
behalf by a third party. Servisair stated that it has no
explanation for operating the purchased equipment on frequencies
461.050/466.050 MHz. Servisair further stated that on September
18, 2002, it reprogrammed its equipment to operate on the
frequencies that were originally licensed to its predecessor.3
5. On November 13, 2002, the District Director of the
New York Office issued a NAL in the amount of ten thousand
dollars ($10,000) for operation of radio transmission equipment
without an instrument of authorization in apparent violation of
Section 301 of the Act. In its response of December 11, 2002,
Servisair repeated the statements it made in response to the
Warning Letter. In addition, Servisair requested cancellation
of the forfeiture for reasons of financial hardship. In
support of its financial hardship claim, Servisair submits
financial documentation for 2000 and 2001.4 Servisair also
noted that neither itself, its parent company nor its sister
companies have previously been found in violation of Commission
rules or regulations.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),5 Section 1.80 of the Rules,6
and The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Servisair's
response, Section 503(b) of the Act requires that the Commission
take into account 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 such other matters as justice may require.7
7. Section 301 of the Act mandates that ``[n]o 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 this Act and with a
license in that behalf granted under the provisions of this
Act.''8 An examination of the Commission's records indicates
no license was issued to Servisair for operations at Newark
International Airport, nor has Servisair filed an assignment
application to obtain such a license.9 Nevertheless, Servisair
conducted operations at least on August 23, 26, and 28, 2002 on
the subject frequency pair. Servisair states that its equipment
was not reprogrammed to its predecessor's frequencies until
September 18, 2002, but in any event, Commission records show
that Servisair has never had a license to operate at Newark
International Airport. Accordingly, we conclude that Servisair
willfully10 and repeatedly11 violated Section 301of the Act.
8. Servisair seeks cancellation of the forfeiture
because of losses the parent corporation and subsidiaries
sustained in two years of operations.12 The Commission has
determined that, in general, a licensee's gross revenues are the
best indicator of its ability to pay a forfeiture.13 After
reviewing the financial data submitted, we find that the
proposed forfeiture amount should not be reduced or cancelled on
the basis of financial hardship. 14 We find, however, that
Servisair, its parent and sister corporations have a history of
overall compliance. Accordingly, we find that a reduction in
the forfeiture amount from the ten thousand ($10,000) imposed by
the NAL to eight thousand ($8000) is warranted for its
compliance history.
9. Commission and Newark International Airport
records indicate that Servisair is not licensed to operate at
Newark International Airport and is not now operating there.
In addition to the forfeiture assessed here, we warn Servisair
that any future operation without a license could lead to more
severe enforcement action.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,15 Servisair IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000) for
its willful and repeated violation of Section 301 of the Act.
11. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.16 Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200332380005 and FRN 0007693153.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Group, 445 12th Street,
S.W., Washington, D.C. 20554.17
12. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Servisair, 18430 Air Mail Road, Houston, TX 77032.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332380005 (Enf. Bur., New York Office, released November 13,
2002).
3 Servisair did not provide information regarding the frequencies
onto which it reprogrammed its equipment. Commission records do
not reflect any license to Servisair at Newark International
Airport.
4 Servisair's parent corporation, Servisair USA, Inc.,
incorporated in 1999; no documents are included for that year.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 301.
9 As of the release date of this item, records of the Newark
International Airport indicate that Servisair is no longer
operating at the Airport.
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
11 As provided by 47 U.S.C. § 312(f)(2), ``[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.'' The Conference Report for Section
312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See
H.R. Rep. 97th Cong. 2d Sess. 51 (1982). Southern California
Broadcasting Co., supra.
12 When assessing the solvency of a licensee for purposes of
reducing a forfeiture, the Commission examines the finances of
the parent corporation, as well as its subsidiary, to determine
how the forfeiture will financially affect the entire corporate
position, Alpha Broadcasting Corporation, 102 FCC 2d 18 (1984), ¶
6.
13 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992).
14 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.