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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-136
Five Star Parking ) NAL/Acct. No. 200832100002
d/b/a Five Star Taxi Dispatch ) FRN # 0005954508
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 23, 2007 Released: October 25, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Five Star
Parking, d/b/a Five Star Taxi Dispatch ("Five Star"), former licensee
of Private Land Mobile Radio Service ("PLMRS") station WPNS752,
apparently liable for a forfeiture in the amount of six thousand, five
hundred dollars ($6,500) for operating its PLMRS station without
Commission authority and for failing to file a timely renewal
application for the station. Five Star acted in apparent willful and
repeated violation of Section 301 of the Communications Act of 1934,
as amended, ("Act") and Sections 1.903(a) and 1.949(a) of the
Commission's Rules ("Rules").
II. background
2. On February 16, 2002, Five Star was granted a PLMRS station license
under call sign WPNS752 with an expiration date of May 28, 2004. Five
Star did not file a renewal application, and consequently its license
to operate station WPNS752 expired on May 28, 2004. On April 3, 2007,
Five Star filed with the Wireless Telecommunications Bureau ("WTB") a
request for Special Temporary Authority ("STA") to operate WPNS752. On
April 16, 2007, WTB granted Five Star's STA request under call sign
WQGT889. On May 10, 2007, WTB approved an administrative update to the
STA to change the name of the licensee to Gateway Security Taxi
Dispatch ("Gateway").
3. Because it appeared that Five Star may have operated WPNS752 after the
expiration of its license, WTB referred this case to the Enforcement
Bureau for investigation and possible enforcement action. On July 3,
2007, the Enforcement Bureau's Spectrum Enforcement Division issued a
letter of inquiry ("LOI") to Five Star.
4. On August 14, 2007, the Enforcement Bureau received Five Star's LOI
Response ("Response"). In its Response, Five Star stated that in
October 2006 it became aware that its license to operate station
WPNS752 had expired. Five Star explained that it ceased operation on
October 31, 2006, when Gateway became the taxi dispatcher for John F.
Kennedy International Airport ("JFK Airport") and was contractually
obligated to turn the license under call sign WPNS752 over to Gateway.
It was then, according to Five Star, that Five Star learned that its
license had expired without renewal.
5. Five Star submits that its failure to understand the renewal process
led to the renewal of another PLMRS station held by Five Star, station
WPRK427, rather than station WPNS752, which was held by Five Star for
its taxi dispatch service. Five Star stated that the vendor who was
responsible for the renewal of its taxi dispatch license filed a
renewal application for the wrong license, station WPRK427. Five Star
mistakenly believed the renewal application submitted by the vendor
was for its taxi dispatch service license, station WPNS752. Five Star
admitted operating station WPNS752 without Commission authorization
from the date the license expired, May 28, 2004, through the date its
taxi dispatch service contract expired with JFK Airport on October 31,
2006.
III. DISCUSSION
6. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
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 that licensees
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.
7. As a Commission licensee, Five Star was required to maintain its
authorization in order to operate its PLMRS station. Five Star failed
to properly review its renewal application for its taxi dispatching
service prior to its submission, resulting in the renewal of WPRK427
instead of WPNS752. Five Star also conceded that it operated station
WPNS752 without Commission authority from the station's license
expiration date of May 28, 2004, until it ceased operation on October
31, 2006. By operating its PLMRS station for almost two and one-half
years without authorization, Five Star apparently violated Section 301
of the Act and Section 1.903(a) of the Rules. Five Star also acted in
apparent violation of Section 1.949(a) of the Rules by failing to file
a timely renewal application for the station.
8. 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 Five Star's violations of Section 301 of
the Act and Sections 1.903(a) and 1.949(a) of the Rules were willful
and repeated.
9. 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 a total forfeiture of $6,500.
1. Section 1.80(b) of the Rules sets a base forfeiture amount of ten
thousand dollars ($10,000) for operation of a station without
Commission authority and three thousand dollars ($3,000) for failure
to file required forms or information. As the Commission recently
held, a licensee's continued operations without authorization and its
failure to timely file a renewal application constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Five Star's separate violations.
2. We propose a $5,000 forfeiture for Five Star's continued operation of
station WPNS752 after the expiration of its license on May 28, 2004.
In proposing a $5,000 forfeiture for the station'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. Consistent with
recent precedent, the proposed $5,000 forfeiture takes into account
that Five Star's unauthorized operations spanned almost two and
one-half years from the license's expiration date. In addition, we
propose a $1,500 forfeiture for Five Star's failure to file the
renewal application for station WPNS752 within the time period
specified in Section 1.949(a) of the Rules. Thus, we propose an
aggregate forfeiture of $6,500.
3. The $6,500 base forfeiture amount is not subject to further
adjustment. We find that Five Star's efforts to come into compliance
with Commission requirements do not entitle the company to any
downward adjustment of the proposed $6,500 forfeiture. Although Five
Star's compliance efforts preceded any Commission investigation or
initiation of enforcement action, the company failed to take immediate
action to notify Commission staff after learning of the unauthorized
operation. Under the circumstances, and consistent with precedent, we
find that no reduction of the proposed forfeiture for good faith
efforts to comply is warranted.
I. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Five Star IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of six thousand, five hundred dollars
($6,500) for the willful and repeated violation of Section 301 of the
Act and Sections 1.903(a) and 1.949(a) of the Rules.
11. 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, Five Star SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. 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.
13. 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 first class mail and certified mail
return receipt requested to Five Star Parking, d/b/a Five Star Taxi
Dispatch, JFK International Airport, Bldg. 14, East Wing, 1st Floor,
Jamaica, NY 11430-1206, Attention: George Vizzacchero, and to Haroon
Akhtar, Operational Manager, Five Star Parking, P.O. Box 432,
LaGuardia Airport, Flushing, NY 11371.
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(a) and 1.949(a).
See File No. 0000735844.
See File No. 0002978776. The STA was granted without prejudice to possible
enforcement action for any prior unauthorized operation.
See File No. 0003024421.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to George
Vizzachero, Five Star Taxi Dispatch (July 3, 2007).
See Letter from Haroon Akhtar, Operational Manager, Five Star Parking to
Natasha O'Dell, Spectrum Enforcement Division, Enforcement Bureau, FCC
(received August 14, 2007) ("Response"). Mr. Akhtar was the project
manager for Five Star Taxi Dispatch from September 2003 through October
2006. Mr. Akhtar had previously requested an extension of time to respond
to the LOI. See Letter from Haroon Akhtar to Ms. O'Dell (July 19, 2007).
Response at 1.
Id.
Id. However, Commission records indicate that Five Star had been sent a
renewal notice on March 3, 2004.
See Response at 1. Five Star Parking operated PLMRS station WPRK427 for
its parking garage facility at JFK Airport. Five Star Parking was awarded
a contract for taxi dispatch service at JFK Airport in September 2001 and
operated PLMRS station WPNS752 for this service under the name Five Star
Taxi Dispatch. Id.
Id.
Id.
Id.
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
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).
Response at 1. Attached to Five Star's Response is a cover letter and
application from its vendor asking Five Star to review the application for
accuracy.
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 (1991), recon. denied, 7 FCC Rcd 3454 (1992); see also Domtar
Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
13811, 13815 (Enf. Bur., Spectrum Enf. Div., 2006); National Weather
Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
3922, 3925 (Enf. Bur., Spectrum Enf. Div., 2006).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 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 against a broadcaster who
operated its station for 14 months without Commission authority and failed
to timely file its renewal application).
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), prohibits the
assessment of a forfeiture for violations that occurred more than a year
prior to the NAL, but does not bar us from taking into account the
continuous nature of violations in determining the appropriate enforcement
action and/or forfeiture amount. See, e.g., Globcom, Inc. d/b/a Globcom
Global Communications, Notice of Apparent Liability for Forfeiture and
Order, 18 FCC Rcd 19893, 19903 (2003), forfeiture ordered, 21 FCC Rcd 4710
(2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671-72 (2000); Cate Communications Corp., Memorandum Opinion and
Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum
Opinion and Order, 10 FCC 2d 37, 37-38 (1967), recon. denied, 11 FCC 2d
193, 195 1967); Yellow Cab Leasing, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 12719, 12722 (Enf. Bur., Spectrum Enf. Div.,
2007); Ted Sakaida & Sons, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 9962, 9965 (Enf. Bur., Spectrum Enf. Div., 2007)
("Sakaida"), response pending.
See Discussion Radio, 19 FCC Rcd at 7438; see also Yellow Cab, 22 FCC Rcd
at 12722; Sakaida, 22 FCC Rcd at 9965; Doss Aviation, Inc., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 9039, 9042 (Enf. Bur.,
Spectrum Enf. Div., 2007); Imperial Sugar Company, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 4987 (Enf. Bur., Spectrum Enf. Div.,
2007), forfeiture ordered, 22 FCC Rcd 17346 (Enf. Bur., Spectrum Enf.
Div., 2007) ("Imperial Sugar").
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); see also Yellow Cab, 22 FCC Rcd at 12722 (proposing a $5,000
forfeiture for operating a station 3. years beyond the expiration of its
license); Imperial Sugar, 22 FCC Rcd at 4990 (proposing a $5,000
forfeiture for operating a station 1. years beyond the expiration of its
license).
See Discussion Radio, 19 FCC Rcd at 7437-38 (proposing a $1,500 forfeiture
for failure to file a timely renewal); see also Hare Planting Co., Inc.,
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13517, 13519 (Enf.
Bur., Spectrum Enf. Div., 2006) (proposing a $1,500 forfeiture for failure
to file a timely renewal), forfeiture ordered, 22 FCC Rcd 7530 (Enf. Bur.,
Spectrum Enf. Div., 2007); Imperial Sugar, 22 FCC Rcd at 4988 (proposing a
$1,500 forfeiture for failure to file timely renewal application for PLMRS
station).
See Mitchell Electric Membership Cooperative, Camilla, Georgia, Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 5538, 5541 (Enf. Bur.,
Spectrum Enf. Div., 2007) (finding that a downward adjustment was
unwarranted where the violator waited six months after becoming aware of
the violation to notify Commission staff and seek authority to operate the
station); American Paging, Inc., Memorandum Opinion and Order, 12 FCC Rcd
10417, 10420 (Wireless Telecommunications Bureau, Enf. and Consumer Info.
Div., 1997) (finding that a downward adjustment for voluntary disclosure
was unwarranted where the violator did not reveal its violation until
approximately a month after having various conversations with Commission
staff regarding an STA and that a downward adjustment for good faith
attempts to comply was unwarranted where the violator continued to operate
the station without authorization after its STA request was denied).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-4371
4
Federal Communications Commission DA 07-4371