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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-09-TP-0163
)
American Taxi Shuttle and Limo, Inc. NAL/Acct. No.: 201032700002
)
Daytona Beach, Florida FRN: 0019167477
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 23, 2010 Released: September 24, 2010
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that American Taxi Shuttle and Limo, Inc. ("American Taxi"),
apparently willfully and repeatedly violated section 301 of the
Communications Act of 1934, as amended ("Act"), by operating an
unlicensed radio transmitter on the frequency 152.3900 MHz in Daytona
Beach, Florida. We conclude, pursuant to section 503(b) of the Act,
that American Taxi is apparently liable for a forfeiture in the amount
of twenty thousand dollars ($20,000).
II. BACKGROUND
2. On September 27, 2009, in response to a complaint of unlicensed radio
transmissions in Daytona Beach, Florida, agents from the Enforcement
Bureau's Tampa Office ("Tampa Office"), used direction-finding
techniques to locate the source of the transmissions on 152.3900 MHz
to an antenna located at the business of American Taxi in Daytona
Beach, Florida. The following day, on September 28, 2009, agents from
the Tampa Office inspected the radio station at this location. The
agents observed Motorola Maxtrac radios in operation. A review of the
Commission's records revealed that American Taxi did not hold an
authorization to operate on 152.3900 MHz at this location. The agents
searched the Commission's records and determined that The Plaza Resort
& Spa, call sign WQBS986, was licensed to operate on the frequency of
152.3900 MHz in Daytona Beach, Florida. During a telephone
conversation with one of the agents, American Taxi's owner, claimed
that he purchased his company's radios from The Plaza Resort & Spa.
American Taxi's owner also claimed that he had a written agreement
with The Plaza Resort & Spa for the use of 152.3900 MHz. However, when
contacted by the agents prior to the inspection, The Plaza Resort &
Spa confirmed that there were no verbal or written agreements with any
other entities to use its assigned frequencies. When informed that The
Plaza Resort & Spa had no record of any such agreement, American
Taxi's owner stated that the agents had spoken with the wrong people.
American Taxi's owner was unable, however, to provide an alternate
contact within The Plaza Resort & Spa. The agents requested that the
owner provide a copy of any agreement for the use of the frequency
152.3900 MHz as soon as possible. Prior to leaving the site, the
agents verbally warned and issued an on-scene Notice of Unlicensed
Operation ("NOUO") to American Taxi, advising the company that its
unlicensed operation violated the Act and must cease immediately.
3. Also, on September 28, 2009, after the inspection and issuance of the
verbal warning and a NOUO, the agents again heard unauthorized
transmissions on 152.3900 MHz and used direction-finding techniques to
locate the source of the transmissions to the same American Taxi
location in Daytona Beach, Florida. The agents delivered a second
verbal warning to American Taxi's owner regarding the unauthorized
transmissions. The owner again claimed that his transmissions were
authorized and stated his company would continue to operate on the
frequency. The agents monitored 152.3900 MHz and observed additional
transmissions by American Taxi after the second verbal warning was
issued.
4. On November 22, 2009, in response to another complaint, the agents
used direction-finding techniques to locate the source of unlicensed
transmissions on 152.3900 MHz to an antenna located at American Taxi's
location in Daytona Beach, Florida. A review of the Commission's
records revealed that American Taxi did not hold an authorization to
operate on 152.3900 MHz at this location. Moreover, to date, American
Taxi has not provided any written agreement authorizing its use of The
Plaza Resort & Spa's frequencies.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. On September 27 and 28,
2009 and November 22, 2009, agents from the Tampa Office observed an
unlicensed radio station operating on 152.3900 MHz from American
Taxi's business in Daytona Beach, Florida. On September 28, 2009,
American Taxi was warned repeatedly (both verbally and in writing)
that its unlicensed operations violated the Act and could subject it
to further enforcement action, including a substantial monetary
forfeiture. Despite these warnings, American Taxi nevertheless
continued its unlicensed operations. Based on the evidence before us,
we find that American Taxi apparently willfully and repeatedly
violated section 301 of the Act by operating radio transmission
apparatus without a license on the frequency 152.3900 MHz from its
business in Daytona Beach, Florida on September 27 and 28 and November
22, 2009.
7. Pursuant to section 1.80 of the Rules, and the Commission's
Forfeiture Policy Statement, the base forfeiture amount for operating
a radio station without an instrument of authorization is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in section 503(b)(2)(E) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other
such matters as justice may require. Because American Taxi's owner
repeatedly operated radio transmission equipment on frequencies for
which he was not licensed with full knowledge that such activity
violated the Act and the Rules, we conclude an upward adjustment is
warranted. Applying the Forfeiture Policy Statement, section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that American Taxi is apparently liable for a forfeiture in the amount
of $20,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Rules, American Taxi Shuttle and Limo, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violation of section
301 of the Act.
9. 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, American Taxi Shuttle and Limo, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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. 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. Payments 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. FCC Form 159 may be obtained
at http://www.fcc.gov/Forms/Form159/159.pdf. 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. American Taxi Shuttle and Limo Inc.
shall also send electronic notification to SCR-Response@fcc.gov on the
date said payment is made.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite
425, Tampa, Florida 33607, and must include the NAL/Acct. No.
referenced in the caption. The statement should also be emailed to
SCR-Response@fcc.gov.
12. 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. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to American Taxi Shuttle and Limo, Inc.
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
Southeast Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
During the inspection, the agents did not learn the specific model of
radios in use. On March 18, 2010, the agents contacted American Taxi's
owner who stated that his company had at all times been using Motorola
Maxtrac 100, Model # D43MJA73A5CK radios with FCC ID: ABZ89FT3730. These
radios are not certified as non-licensed Part 15 devices. Thus, operation
of these radios requires a license.
Subsequently, on December 8, 2009, American Taxi obtained an authorization
in the Industrial Business Pool Service to operate from this location on
the frequencies 153.335 MHz, 153.605 MHz, and 153.6875 MHz, with the call
sign WQLC888.
See note 4, supra.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under section 503(b) of the
Act, provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S:301.
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) ("Forfeiture Policy
Statement"), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
See Pilot Travel Centers, L.L.C., 19 FCC Rcd 23113, 23117 P:17 (2004)
(upwardly adjusting a proposed forfeiture to $125,000 from an aggregate
$91,000 base amount, based on a finding that the retailer continued to
market unauthorized devices after receiving citations, evincing "a pattern
of intentional non-compliance with and apparent disregard for" the
Commission's equipment rules).
47 U.S.C. S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
47 U.S.C. S: 504(a).
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(continued....)
Federal Communications Commission DA 10-1803
2
Federal Communications Commission DA 10-1803