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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Alpha Ambulance, Inc. ) File No. EB-02-SJ-031
) NAL/Acct. No. 200232680007
San Juan, Puerto Rico ) FRN 0005-9491-93
ORDER
Adopted: February 3, 2004 Released: February 5,
2004
By the Commission:
I. INTRODUCTION
1. By this Order, we deny the application for review filed
on June 13, 2003 and supplemented on June 16, 2003 by Alpha
Ambulance, Inc. (``Alpha'') of the Memorandum Opinion and Order
(``MO&O''),1 issued by the Enforcement Bureau (``Bureau'') on May
14, 2003. In that MO&O, the Bureau denied the petition for
reconsideration of the Forfeiture Order,2 which assessed a ten
thousand dollar ($10,000) forfeiture against Alpha for operating
radio transmission equipment without Commission authorization in
willful violation of Section 301 of the Communications Act of
1934, as amended (the ``Act''),3 and Section 1.903(a) of the
Commission's Rules (the ``Rules'').4
II. BACKGROUND
2. In May of 2002, the Commission's San Juan, Puerto Rico
Office (``San Juan Office''), responded to an interference
complaint from the Commonwealth of Puerto Rico Medical Emergency
Services (the ``Commonwealth''). Using direction finding
techniques, the San Juan Office determined that Alpha was
transmitting on the Commonwealth's assigned frequencies and
interfering with the Commonwealth's emergency medical
communications. After interviewing Alpha's principals, the San
Juan Office issued Alpha a Notice of Apparent Liability
(``NAL''), finding that Alpha had operated radio transmitting
equipment without Commission authorization for approximately
three years and proposing a forfeiture in the amount of $10,000.
3. In its response, Alpha did not dispute the findings of
the NAL. However, Alpha claimed an inability to pay, and sought a
substantial reduction in, the proposed forfeiture amount. In
support, Alpha submitted its 1999, 2000 and 2001 tax returns. In
the petition for reconsideration of the Forfeiture Order and in
the instant application for review of the MO&O, Alpha reiterated
its claim and supplemented its tax returns with a letter from its
accountant.5 Finally, Alpha described itself as a ``small
ambulance company with 13 employees and six ambulances,''6 that
experienced financial decline,7 and that ``lacked intent to
operate without a license.''8
III. DISCUSSION
4. In The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, the Commission adopted guidelines for
assessing base forfeiture amounts for violations of the Act and
the Commission's rules, and ``retain[ed] the discretion to take
action in specific cases as warranted.''9 The forfeiture
guidelines establish a $10,000 base forfeiture for operation of
unauthorized transmissions.10 In assessing the forfeiture, the
Commission may adjust the base forfeiture by taking into account,
inter alia, a violator's ability to pay and other such matters as
justice may require.11 It is in this context, that we consider
Alpha's application for review.
5. In analyzing economic-hardship claims, as the
Forfeiture Order explains,12 the Commission generally looks to
companies' gross revenues as reasonable and appropriate
yardsticks to determine their ability to pay assessed
forfeitures.13 Indeed, the Commission stated that if companies'
gross revenues are sufficiently large, the fact that net losses
are reported, alone, does not necessarily signify inability to
pay.14
6. In the instant case, we have carefully and
independently reviewed Alpha's submissions. We find that Alpha's
tax returns for 1999, 2000 and 2001 reflect steadily increasing
and sufficiently large gross revenues, and that its gross
revenues effectively negate the financial hardship claim.
Specifically, we find that the $10,000 forfeiture is not
excessive under Commission precedent.15 We further find that
Alpha has not substantiated its claim16 that payment of the
$10,000 forfeiture could adversely affect its continued
``excellent and well need[ed] . . . service to the public'' and
its employees' ``well be[ing].''17 We thus are not persuaded by
Alpha's financial hardship claim, and we agree with the Bureau
that there is no basis to reduce the assessed forfeiture
amount.18
7. We also do not find that Alpha's professed ``lack of
intent'' excuses, lessens, or mitigates its violation. Section
503(b)(1)(B) provides that any person who ``willfully or
repeatedly'' fails to comply with any provision of the Act or any
rule, regulation or order issued by the Commission under the Act
``shall be liable to the United States for a forfeiture
penalty.''19 In this context, ``willful'' simply means the
conscious and deliberate commission or omission of an act,
irrespective of any intent to violate statutory or regulatory
requirements.20 In the instant case, it is undisputed that
Alpha consciously and deliberately operated transmission
equipment without Commission authorization for a three-year
period, and that its operations ultimately interfered with the
Commonwealth's authorized and vital emergency medical
communications. By so acting, Alpha willfully violated Section
301 of the Act and Section 1.903(a) of the Commission's
implementing rules. We thus find no basis to reduce the assessed
forfeiture amount.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
5(c)(4) of the Act21 and Section 1.115(g) of the Rules,22 the
Application for Review filed by Alpha Ambulance, Inc. of the
Enforcement Bureau's May 14, 2003 Memorandum Opinion and Order
for NAL No. 200232680007 IS hereby DENIED.
9. 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.23
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.
200232680007 and FRN 0005-9491-93. 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.
20554.24
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Lewis H. Goldman, Esq., counsel for Alpha Ambulance,
Inc., at 45 Dudley Court, Bethesda, Maryland 20814.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 Alpha Ambulance, Inc., 18 FCC Rcd 9689 (Enf. Bur. 2003)
(``MO&O'').
2 Alpha Ambulance, Inc., 17 FCC Rcd 26105 (Enf. Bur. 2002)
(``Forfeiture Order'').
3 47 U.S.C. § 301.
4 47 C.F.R. § 1.903(a).
5 See Letter from CPA, CFE, MBA Ramon Quinones Rodriguez to David
Solomon, Chief, Enforcement Bureau, Federal Communications
Commission (January 22, 2003) (``Rodriguez Letter''); see also
note 17 and accompanying text, infra.
6 Application for Review at 1.
7 Id. at 2.
8 Id. at 3.
9 12 FCC Rcd 17087, 17093 ¶ 8, recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Policy Statement'').
10 Id. at 17113.
11 See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4).
12 17 FCC Rcd at 26107, ¶ 9.
13 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089, ¶ 8 (1992); see also Forfeiture Policy Statement, 12 FCC
Rcd at 17106-07, ¶ 43.
14 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000),
recon. denied, 16 FCC Rcd 10023, 10025, ¶ 6 (2001); Independent
Communications, Inc., 14 FCC Rcd 9605 (1999), recon. denied, 15
FCC Rcd 16060, 16060, ¶ 2 (2000); Hoosier Broadcasting Corp.¸ 14
FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641, ¶
7 (Enf. Bur. 2000).
15 See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not
deemed excessive where it represented approximately 2.02 percent
of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd at 10025 (forfeiture not deemed excessive where it
represented approximately 7.9 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). In this case, the forfeiture represents a smaller
percentage than those issued in the Local Long Distance, Inc.,
and Hoosier Broadcasting Corp., cases, and only a nominally
higher percentage compared to the forfeiture issued in PJB
Communications of Virginia, Inc.
16 See, e.g., PJB Communications of Virginia, Inc., 7 FCC Rcd at
2089, ¶ 8.
17 Rodriguez Letter at 1.
18 As set forth in the Forfeiture Order and the MO&O and note 24
and accompanying text, infra, Alpha may request full payment
under an installment plan.
19 47 C.F.R. § 503(b)(1)(B).
20 See 47 U.S.C. § 312(f); see also Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991); Hoosier
Broadcasting Corp.¸ 15 FCC Rcd at 8641, ¶ 6.
21 47 U.S.C. § 155(c)(4).
22 47 C.F.R. § 1.115(g).
23 47 U.S.C. § 504(a).
24 See 47 C.F.R. § 1.1914.