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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                      File No. EB-03-PA-029
)                               
File No. EB-03-PA-029                 NAL/Acct. No. 200432400001
                               
)                                     FRN: 0009-3455-62
Pang Cheng, d/b as Best Wok1    
)                               
NAL/Acct. No. 200432400001
                               
)
Westville, New Jersey           
)                               
FRN: 0009-3455-62 


                  MEMORANDUM OPINION AND ORDER

   Adopted:  February 7, 2005           Released:  February 9, 
2005

By the Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), we 
deny a petition for reconsideration filed by Pang Cheng, d/b as 
Best Wok (``Best Wok''), and we affirm the Forfeiture Order 
issued May 21, 2004, in the amount of ten thousand dollars 
($10,000) for willful violation of Section 301 of the 
Communications Act of 1934, as amended (``Act'').2  At the time 
of the noted violation Best Wok owned a restaurant located at 
1070 Delsea Drive, Westville, New Jersey. The noted violation 
involves Best Wok's operation of radio transmitting equipment on 
the frequency 145.8376 MHz without a license issued by the 
Commission.

II.  BACKGROUND

     2.   The Enforcement Bureau (``Bureau') received a complaint 
alleging that Best Wok was operating radio transmitting equipment 
on the two meter amateur frequency 145.835 MHz without a license.  
On October 16, 2001, and January 22, 2003, the Bureau sent Best 
Wok letters warning that operation of radio transmitting 
equipment without a license is in violation of Section 301 of the 
Act and could subject it to penalties.  The certified mail return 
receipts indicate that Best Wok received the warning letters on 
October 25, 2001, and January 27, 2003, respectively.

     3.   On February 28, 2003, an agent from the Commission's 
Philadelphia, Pennsylvania, field office (``Philadelphia 
Office'') drove to the Westville, New Jersey, area to determine 
whether Best Wok was operating radio transmitting equipment 
without a license.  At approximately 10:45 a.m., the agent began 
monitoring a constant radio signal on or near 145.835 MHz.  At 
11:10 a.m., the agent used direction finding techniques to 
determine that the source of the transmissions was the Best Wok 
restaurant at 1070 Delsea Drive, Westville, New Jersey.

     4.   At 11:30 a.m. on February 28, 2003, the agent entered 
the Best Wok restaurant and inspected the radio transmitting 
equipment in the presence of the restaurant manager, Mr. Sae C. 
Hauwo, who admitted that Best Wok was operating a long range 
cordless telephone system.  The system included a base unit at 
the restaurant and a mobile unit in Mr. Hauwo's vehicle.  The 
agent used frequency-measuring equipment to determine that the 
base unit was transmitting on 145.8376 MHz.  Mr. Hauwo stated 
that neither Best Wok nor any of its employees had a license to 
operate the radio transmitting equipment.  Additionally, Mr. 
Hauwo asserted that, when Best Wok received the October 16, 2001, 
warning letter, it ceased operation of the long range cordless 
telephone system and purchased another system.  Mr. Hauwo stated 
further that Best Wok resumed operation of the long range 
cordless telephone system because the other system did not 
provide sufficient coverage.

     5.   On February 26, 2004, the Philadelphia Office issued a 
NAL in the amount of $10,000 to Best Wok for unlicensed operation 
on 145.8376 MHz.  After Best Wok failed to respond to the NAL, 
the Bureau issued Best Wok a Forfeiture Order in the amount of 
$10,000 for that violation.   In its petition for 
reconsideration, Best Wok requests cancellation or reduction of 
the forfeiture.  Best Wok argues that its violation was 
unintentional and minor, that it has corrected the violation, 
that its failure to respond to the NAL was unintentional, that it 
has no prior violations and that Best Wok is now out of business 
and is unable to pay the forfeiture.

III.  DISCUSSION

     6.   We reject Best Wok's claim that its unlicensed 
operation was unintentional.  Best Wok contends that it purchased 
its radio apparatus upon the representation that its use in Best 
Wok's business would be lawful and that it discontinued operation 
of that radio apparatus when it received the first warning letter 
from the FCC.  Best Wok further claims that ``a person or persons 
unknown'' reconnected Best Wok's base station and operated it 
without Best Wok's knowledge or consent. Best Wok's argument is 
not credible in light of the FCC agent's determination that the 
radio apparatus was transmitting from the Best Wok restaurant on 
February 28, 2003, notwithstanding two prior warnings from 
Commission staff, and Mr. Hauwo's statement on February 28, 2003, 
that Best Wok resumed operation of its long range cordless 
telephone system because its other communications system did not 
provide sufficient coverage.

     7.   Best Wok argues its unlicensed operation was a 
``minor'' violation because it did not use its radio apparatus as 
a two meter amateur station and caused only ``minimal'' 
interference to the amateur service.  We do not agree.  Best 
Wok's unlicensed operation generated a number of complaints from 
licensed amateurs that Best Wok was operating its station on two 
meter frequencies assigned to the amateur service.  Furthermore, 
Best Wok continued its unauthorized operation even after 
receiving written warnings on October 25, 2001, and January 27, 
2003.  Any use of amateur service frequencies for business 
communications creates a great potential for harmful interference 
to authorized amateur service communications.  We must take 
strong action against such use because failure to do so would 
only encourage others to engage in the same conduct.

     8.   No mitigation is warranted on the basis of Best Wok's 
correction of the violation.  As the Commission stated in Seawest 
Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), ``corrective action 
taken to come into compliance with Commission rules or policy is 
expected, and does not nullify or mitigate any prior forfeitures 
or violations.''3

     9.   Best Wok's failure to respond to the NAL is not at 
issue in this proceeding.  Therefore, we need not address Best 
Wok's assertion that its failure to respond to the NAL was 
unintentional.

     10.  Best Wok asserts that it has no prior violations of the 
Act.  However, we can not find that Best Wok has a history of 
overall compliance because Best Wok is not a Commission licensee 
and, therefore, has no history with the Commission upon which a 
history of overall compliance finding can be based.4

     11.  Best Wok asserts that it is unable to pay the proposed 
forfeiture.  As stated in the NAL, 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.5  However, the only financial 
documentation provided by Best Wok is Schedule C (profit and loss 
statement) from its 2003 federal income tax return.  This 
information is not a sufficient basis on which to assess Best 
Wok's ability to pay.6  Accordingly, in the absence of sufficient 
information to support a decision to the contrary, we decline to 
cancel or reduce the proposed forfeiture on the basis of 
inability to pay.

     12.  We have considered the forfeiture amount and we have 
examined Best Wok's petition for reconsideration pursuant to the 
statutory factors prescribed by Section 503(b)(2)(D) of the Act,7 
and in conjunction with the Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines,8 as well.  As a result of 
our review, we conclude that Best Wok willfully violated Section 
301 of the Act and find that neither cancellation nor reduction 
of the monetary forfeiture is appropriate.

IV.  ORDERING CLAUSES

     13.  Accordingly, IT IS ORDERED that, pursuant to Section 
405 of the Act9 and Section 1.106 of the Rules,10 Best Wok's 
petition for reconsideration of the Forfeiture Order IS DENIED 
and the Forfeiture Order IS AFFIRMED.

     14.  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.11  
Payment of the forfeiture must be made by check or similar 
instrument, payable to the order of the Federal Communications 
Commission.  The payment must include the NAL/Acct. No. and FRN 
No. referenced above.  Payment by check or money order may be 
mailed to Forfeiture Collection Section, Finance Branch, Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
Payment by wire transfer may be made to ABA Number 071000013, 
receiving bank Bank One, and account number 1165259. Requests for 
full payment under an installment plan should be sent to: Chief, 
Revenue and Receivables Operations Group, 445 12th Street, S.W., 
Washington, D.C. 20554.12

     15.  IT IS FURTHER ORDERED that, a copy of this Order shall 
be sent by First Class and Certified Mail, Return Receipt 
Requested, to Pang Cheng, d/b as Best Wok,. 1070 Delsea Drive, 
Westville, New Jersey 08093, and to its counsel, Neil I. 
Sternstein, Esq., Five Aberdeen Place, Woodbury, New Jersey 
08096.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 The Notice of Apparent Liability for Forfeiture(``NAL''), 
NAL/Acct No. 200432400001 (Enf. Bur., Philadelphia Office, 
released February 26, 2004) and the Forfeiture Order, 19 FCC Rcd 
8939 (Enf. Bur. 2004), were captioned ``Best Wok.''  Information 
submitted with the petition for reconsideration indicates that 
Best Wok is a sole proprietorship business owned by Pang Cheng.  
According, we have recaptioned this matter as ``Pang Cheng, d/b 
as Best Wok.''
2 47 U.S.C. § 301.
3 See also  Callais Cablevision,  Inc., 17 FCC  Rcd 22626,  22629 
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  and 
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
4 See Timothy J.  Massett, 19 FCC Rcd  9258 (Enf. Bur. 2004)  and 
Odino Joseph, 18 FCC Rcd 16522 (Enf. Bur. 2003).
5 NAL at para. 13.
6 The Commission has long recognized that gross revenues are the 
primary indicator of ability to pay a forfeiture.  See PJB 
Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992) 
(finding that gross receipts are a ``very useful yardstick'' in 
analyzing a company's financial condition for forfeiture 
purposes).   In order to determine Best Wok's ability to pay from 
its income tax returns, we need its complete tax returns from the 
most recent three year period.  It is not sufficient to provide 
only Schedule C because that schedule includes only revenues from 
Best Wok's restaurant business and not any other income or 
revenues of Best Wok, including income or revenues of Mr. Cheng.
7 47 U.S.C. § 503(b)(2)(D).
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 405.
10 47 C.F.R. § 1.106.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.