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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-SE-370
Yellow Cab Leasing, Inc. ) NAL/Acct. No. 200732100039
Canton, Ohio ) FRN # 0002937126
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 5, 2007 Released: July 10, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Yellow
Cab Leasing, Inc. ("Yellow Cab"), former licensee of Private Land
Mobile Radio Service ("PLMRS") station KNHW827, in Canton, Ohio,
apparently liable for a forfeiture in the amount of ten thousand, five
hundred dollars ($10,500) for operating a PLMRS station without
Commission authority, failing to file a timely renewal application for
the station and failing to respond to directives of the Enforcement
Bureau ("Bureau") to provide certain information. Yellow Cab acted in
apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"), and Sections 1.903 and
1.949(a) of the Commission's Rules ("Rules").
II. background
2. Yellow Cab was granted a PLMRS station license under call sign KNHW827
on August 27, 1998, with an expiration date of November 16, 2003.
Yellow Cab did not file a renewal application and thus its license to
operate station KNHW827 expired on November 16, 2003.
3. In October 2006, the Enforcement Bureau received a complaint from the
City of Canton, Ohio alleging that Yellow Cab was continuing to
operate Station KNHW827 without authorization. The City of Canton
indicated that it requires cab companies to be equipped with two-way
radios and that it had confirmed the operation of Station KNHW827
through conversations with at least 16 cab drivers the previous week.
On November 9, 2006, the Bureau's Spectrum Enforcement Division
("Division") issued a letter of inquiry to Yellow Cab. The letter of
inquiry directed Yellow Cab to submit a response within 30 business
days and explained that failure to appropriately respond may
constitute a violation of the Communications Act and Rules. Yellow Cab
did not respond to the Division's inquiry. On January 17, 2007, the
Division issued a second letter of inquiry to Yellow Cab, but received
neither a return receipt nor a response. Subsequently, on March 27,
2007, the Division issued another letter of inquiry to Yellow Cab.
Again, Yellow Cab failed to respond to the Division's inquiry. On
April 12, 2007, Yellow Cab filed an application for a new PLMRS
station which the Wireless Telecommunications Bureau granted under
call sign WQGX626 on May 16, 2007.
III. discussion
4. Section 301 of the Act and Section 1.903 of the Rules prohibit the use
or operation of any apparatus for the transmission of energy,
communications or signals by a wireless radio station except under,
and in accordance with, a Commission granted authorization.
Additionally, Section 1.949(a) of the Rules requires licensees to file
renewal applications for wireless radio stations, "no later than the
expiration date of the authorization for which renewal is sought, and
no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates on the date of expiration.
5. As a Commission licensee, Yellow Cab is required to maintain a current
authorization to operate its station. Yellow Cab apparently operated
its PLMRS station without authorization for over three years, from
November 16, 2003 to April 12, 2007 (the date that the Wireless
Telecommunications Bureau received the subject license application).
By operating its station without authorization, Yellow Cab apparently
willfully and repeatedly violated Section 301 of the Act and Section
1.903 of the Rules. Yellow Cab also acted in apparent violation of
Section 1.949(a) of the Rules by failing to file a timely renewal
application for the station.
6. Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
Section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch of business
and to the ends of justice." Section 403 likewise grants the
Commission "full authority and power ... to institute an inquiry, on
its own motion ... relating to the enforcement of any of the
provisions of this Act." Pursuant to that authority, the Bureau three
times ordered Yellow Cab to submit a timely written response to its
letters of inquiry and to provide the information requested. Three
times Yellow Cab failed to respond as directed. It is well settled
that a party cannot ignore the directives in a Bureau letter of
inquiry.
7. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeatedly" means more than once. Based upon the record
before us, it appears that Yellow Cab's violations of Section 301 of
the Act and Sections 1.903 and 1.949(a) were willful and repeated. It
also appears that Yellow Cab willfully and repeatedly failed to
respond to Bureau inquiries concerning its PLMRS license.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "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." Having considered the statutory factors, as explained below,
we propose an aggregate forfeiture in the amount of $10,500.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information, and ten thousand dollars ($10,000) for operation of a
station without Commission authority. As the Commission recently held,
a licensee's failure to timely file a renewal application and its
continued operation without authorization constitute separate
violations of the Act and the rules and warrant the assessment of
separate forfeitures. Accordingly, we propose separate forfeiture
amounts for Yellow Cab's separate violations.
10. Consistent with precedent, we propose a $1,500 forfeiture for Yellow
Cab's failure to file the renewal application for its PLMRS station
within the time period specified in Section 1.949(a) of the Rules.
Additionally, we propose a five thousand dollar ($5,000) forfeiture
for Yellow Cab's continued operation of its PLMRS station after the
expiration of its license on November 16, 2003. In proposing a $5,000
forfeiture for Yellow Cab's unauthorized operations, we recognize that
the Commission considers a licensee who operates a station with an
expired license in better stead than a pirate broadcaster who lacks
prior authority, and thus downwardly adjust the $10,000 base
forfeiture amount accordingly. Thus, we propose an aggregate
forfeiture of six thousand five hundred dollars ($6,500) ($1,500 for
failure to timely file a renewal application and $5,000 for
unauthorized operations).
11. Pursuant to the Forfeiture Policy Statement and Section 1.80 of the
Rules, the base forfeiture amount for failure to respond to a
Commission communication is four thousand dollars ($4,000). We find
that Yellow Cab's willful and repeated failure to respond to the
Bureau's inquiries warrants a proposed forfeiture. Misconduct of this
type exhibits a disregard for the Commission's authority that cannot
be tolerated, and, more importantly, threatens to compromise the
Commission's ability to adequately investigate violations of its
rules. Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that Yellow Cab is
apparently liable for a forfeiture in the amount of $4,000 for failing
to respond to the Bureau's letters of inquiry. Thus, we propose an
aggregate forfeiture of $10,500 for Yellow Cab's apparent willful and
repeated violations of Section 301 of the Act and Sections 1.903 and
1.949(a) of the Rules and Yellow Cab's apparent willful and repeated
failure to respond to Bureau inquiries concerning its PLMRS license.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Yellow Cab Leasing,
Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of $10,500 for willful and repeated violation of Section
301 of the Act and Sections 1.903 and 1.949(a) of the Rules and for
willful and repeated failure to respond to a Bureau order.
13. 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 for Forfeiture, Yellow Cab Leasing, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
1. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106. A request for full payment under an
installment plan should be sent to: Associate Managing
Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.
2. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
14. 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; 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt
Requested to Mr. Fred C. Nero, Yellow Cab Leasing, Inc., 4137
Martindale Road, N.E., Canton, Ohio 44705.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903 and 1.949(a).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Yellow Cab
Leasing, Inc. (November 9, 2006). The Division received a certified mail
return receipt showing that Yellow Cab had received the letter on November
21, 2006.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Yellow Cab
Leasing, Inc. (January 17, 2007).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Yellow Cab
Leasing, Inc. (March 27, 2007). The Division received a certified mail
return receipt showing that Yellow Cab had received the letter on March
31, 2007.
File No. 0002991326. The grant is "without prejudice to possible
enforcement action for any prior unauthorized operation."
47 C.F.R. S: 1.955(a)(1).
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002) (licensee is responsible for compliance
with all Commission rules).
Section 90.159(b) of the Rules, 47 C.F.R. S: 90.159(b), states that under
certain circumstances (as here):
[a]n applicant proposing to operate a new land mobile radio station . . .
below 470 MHz . . . that is required to submit a frequency recommendation
. . . may operate the proposed station during the pendency of its
application for a period of up to . . . 180 days upon the filing of a
properly completed formal Form 601 application that complies with [the
rules] if the application is accompanied by evidence of frequency
coordination.
47 U.S.C. S:S: 4(i), 4(j) and 403.
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) (Commission assessed a $100,000 forfeiture against a carrier
for its willful refusal to supply a sworn declaration in response to a
Bureau letter of inquiry, stating: "[T]he order at issue here was squarely
within the Commission's authority and, in any event, parties are required
to comply with Commission orders even if they believe them to be outside
the Commission's authority."); see General Growth Properties, Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 6562 (Enf. Bur., Spectrum
Enf. Div. 2007) ("General Growth Properties") (proposing a $4,000
forfeiture for repeated failure to respond to written Bureau inquiries
concerning its PLMRS station); Shenzhen Ruidian Communication Co. Ltd.,
Forfeiture Order, 21 FCC Rcd 2177 (Enf. Bur., Spectrum Enf. Div. 2006)
("Shenzhen Ruidian") (assessing a $4,000 forfeiture for willfully and
repeatedly failing to respond to a directive of the Bureau to provide
certain information and documents).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387-88 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), Report and Order,
12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) ("Discussion Radio")
(proposing forfeitures of $5,000 and $1,500, respectively, against a
broadcaster who both operated its station for 14 months without Commission
authority and failed to timely file its renewal application).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $1,500 forfeiture
for failure to file a timely renewal application for a broadcast station);
Hare Planting Co., Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd 13517 (Enf. Bur., Spectrum Enf. Div. 2006), forfeiture ordered,
Forfeiture Order, 21 FCC Rcd 7530 (Enf. Bur., Spectrum Enf. Div. 2007)
("Hare Planting") (assessing a forfeiture in the amount of $1,500 for
failure to file a timely renewal application for a PLMRS station);
Imperial Sugar Company, Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 4987 (Enf. Bur., Spectrum Enf. Div. 2007) ("Imperial Sugar")
(proposing a $1,500 forfeiture for failure to file a timely renewal
application for a PLMRS station).
Under Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a NAL. Section 503(b)(6), however, does
not bar us from considering Yellow Cab's prior conduct in determining the
appropriate forfeiture amount for violations that occurred within the
one-year statutory period. See Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Liability for Forfeiture, 18 FCC Rcd 19893,
19903 (2003), forfeiture ordered, Forfeiture Order, 21 FCC Rcd 4710
(2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671 (2000) (although the Commission may not find an entity liable
for violations committed more than one year before the issuance of an NAL,
"it may lawfully look at facts arising before that date in determining an
appropriate forfeiture amount"). Accordingly, while we take into account
the continuous nature of the violations in determining the appropriate
forfeiture amount, our proposed forfeiture relates only to Yellow Cab's
apparent violations that have occurred within the past year.
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); Hare Planting, 21 FCC Rcd 7530 (assessing a forfeiture in the
amount of $5,000 for continued operation of its PLMRS station for
approximately 15 months after the expiration of its license); Imperial
Sugar, 22 FCC Rcd 4987 (proposing a $5,000 forfeiture for continued
operation of its PLMRS station for approximately 20 months after the
expiration of its license).
Forfeiture Policy Statement, 12 FCC Rcd 17087.
47 C.F.R. S: 1.80.
See, e.g., General Growth Properties, 22 FCC Rcd at 6565, Shenzhen
Ruidian, 21 FCC Rcd. at 2177.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3011
4
Federal Communications Commission DA 07- 3011