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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 d/b/a ) NAL/Acct. No. 200832100002
Five Star Taxi Dispatch ) FRN # 0005954508
)
FORFEITURE ORDER
Adopted: February 19, 2008 Released: February 21, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of six thousand five hundred dollars ($6,500) against Five
Star Parking d/b/a Five Star Taxi Dispatch ("Five Star") for willful
and repeated violations 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"). The noted violations involve Five Star's
operation of Private Land Mobile Radio Service ("PLMRS") station
WPNS752 without Commission authority and failure to file a timely
renewal application for the station.
II. background
2. 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. 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
specified expiration date.
3. On October 25, 2007, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") released a Notice of Apparent Liability for
Forfeiture ("NAL") finding that Five Star operated station WPNS752
without Commission authority after the expiration of its license and
failed to timely file a renewal application for the station by the
date of expiration. Specifically, the NAL found that Five Star
operated station WPNS752 without Commission authority after its
authorization expired on May 28, 2004 until it ceased operation on
October 31, 2006. The NAL also found that Five Star failed to file a
timely renewal application for station WPNS752. These findings were
based on Five Star's response to the Division's Letter of Inquiry
wherein Five Star admitted to operating station WPNS752 after the
expiration of its license and acknowledged that its failure to
understand the renewal process led to the renewal of another PLRMS
station license held by Five Star instead of station WPNS752. Thus,
the Division proposed a forfeiture in the amount of $6,500 for the
apparent willful and repeated violations of Section 301 of the Act and
Sections 1.903(a) and 1.949(a) of the Rules.
4. In its November 7, 2007 response to the NAL, Five Star seeks
cancellation of the forfeiture, claiming that its operation of station
WPNS752 without obtaining or renewing the license was unintentional as
it mistakenly believed that its vendor had submitted a renewal
application for this station. Five Star explains that its vendor had
mixed up Five Star's renewal application for its taxi dispatch service
license (WPNS752) with the renewal application for another license
held by Five Star. Due to its lack of knowledge about the renewal
process, Five Star states that it was under the impression that the
renewal application submitted by the vendor was for its taxi dispatch
service license. Five Star further asserts that it has fully
cooperated in the Commission's investigation. Based on these facts,
Five Star requests cancellation of the proposed forfeiture.
III. DISCUSSION
5. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In assessing forfeitures,
Section 503(b)(2)(E) of the Act requires that we 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. We have considered Five Star's response to the NAL in light
of the above statutory factors, our Rules, and the Forfeiture Policy
Statement. We conclude that Five Star willfully and repeatedly
violated Section 301 of the Act and Sections 1.903(a) and 1.949(a) of
the Rules and that no mitigating circumstances warrant cancellation or
further reduction of the proposed forfeiture amount.
6. Five Star does not dispute that it failed to file a timely renewal
application for station WPNS752 or that its operation of this station
was unauthorized, but states that these violations were unintentional.
Specifically, Five Star asserts that because of its lack of knowledge
of the renewal process, it mistakenly believed that its vendor had
filed the correct renewal form and that its license had been renewed.
As the Commission has held, however, violations resulting from
inadvertent error or failure to become familiar with the FCC's
requirements are willful violations. In the context of a forfeiture
action, "willful" does not require a finding that the rule violation
was intentional. Rather, the term "willful" means that the violator
knew that it was taking the action in question, irrespective of any
intent to violate the Rules. Moreover, the Commission has long held
that "licensees are responsible for the acts and omission of their
employees and independent contractors," and has consistently "refused
to excuse licensees from forfeiture penalties where the actions of
employees or independent contractors have resulted in violations."
7. Finally, although Five Star has been responsive and cooperative over
the course of this investigation, such conduct does not justify
cancellation of the forfeiture. All parties must fully cooperate and
act with "complete candor"during Commission investigations. Compliance
with an ongoing Commission investigation does not nullify or mitigate
any prior violation. Five Star has not demonstrated that a reduction
or cancellation of the proposed forfeiture is warranted. Accordingly,
we find that Five Star willfully and repeatedly violated Section 301
of the Act and Sections 1.903(a) and 1.949(a) of the Rules and that a
forfeiture in the amount of $6,500 is appropriate.
IV. ORDERING Clauses
8. 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, Five Star Parking
d/b/a Five Star Taxi Dispatch IS LIABLE FOR A MONETARY FORFEITURE in the
amount of six thousand five hundred dollars ($6,500) for willful and
repeated violation of Section 301 of the Act and Sections 1.903(a) and
1.949(a) of the Rules.
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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
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.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class 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, New York 11430-1206, Attention: George
Vizzacchero, and to Haroon Akhtar, Operational Manager, Five Star Parking
d/b/a Five Star Taxi Dispatch, P.O. Box 432, LaGuardia Airport, Flushing,
New York 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).
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).
Five Star Parking d/b/a Five Star Taxi Dispatch, 22 FCC Rcd 18857 (Enf.
Bur., Spectrum Enf. Div., 2007) ("NAL").
Id. at 18859.
See Letter from Haroon Akhtar, Operational Manager, Five Star Parking to
Natasha O'Dell, Spectrum Enf. Div., Enf. Bur., FCC (rec'd Aug. 14, 2007)
("LOI Response").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enf. Div., Enf. Bur.,
FCC to George Vizzachero, Five Star Taxi Dispatch (July 3, 2007).
NAL, 22 FCC Rcd at 18859. According to Five Star, the vendor responsible
for filing its renewal application filed a renewal application for PLMRS
station WPRK427, another license held by Five Star, which Five Star
mistakenly believed was for the renewal of its taxi dispatch service
license (WPNS752).
Id. at 18860.
NAL Response at 1.
Id.
Id.
Id.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to Sections 312 and 503(b) of the Act, H.R. REP. No. 97-765, 51
(Conf. Rep.), and the Commission has so interpreted the terms in the
Section 503(b) context. See Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387-88 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(1) of the Act defines "repeated" as "the commission or
omission of [any] act more than once or, if such commission or omission is
continuous, for more than one day." 47 U.S.C. S: 312(f)(1). See also
Southern California, 6 FCC Rcd at 4388 (applying this definition of
repeated to Sections 312 and 503(b) of the Act).
PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC
Rcd 2088 (1992); Southern California, 6 FCC Rcd at 4387 (stating that
"inadvertence ... is at best, ignorance of the law, which the Commission
does not consider a mitigating circumstance"); Standard Communications
Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986) (stating that
"employee acts or omissions, such as clerical errors in failing to file
required forms, do not excuse violations").
See Southern California, 6 FCC Rcd at 4387. 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).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 (2002) ("Eure"); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum Opinion
and Order, 35 FCC 2d 361 (1972).
See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).
See 47 C.F.R. S:1.17.
See Southern California, 7 FCC Rcd at 3455 (a licensee's "frank" response
to a letter of inquiry did not warrant a downward adjustment as "complete
candor" is required).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-410
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Federal Communications Commission DA 08-410