Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
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
)
)
)
FORFEITURE ORDER
Adopted: June 10, 2011 Released: June 10, 2011
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty thousand dollars ($20,000) to American Taxi
Shuttle and Limo, Inc. ("American Taxi") for willful and repeated
violation of section 301 of the Communications Act of 1934, as amended
("Act"). The noted violations involved American Taxi's operation of an
unlicensed radio transmitter on the frequency 152.3900 MHz in Daytona
Beach, Florida.
II. BACKGROUND
2. On September 24, 2010, the Enforcement Bureau's Tampa Office ("Tampa
Office") issued a Notice of Apparent Liability for Forfeiture ("NAL")
to American Taxi for its operation of radio transmitters on 152.3900
MHz without the requisite Commission authorization. As discussed in
detail in the NAL, agents from the Tampa Office determined that
American Taxi, despite verbal and written warnings issued by the
agents, continued its unlicensed operation from its business location
in Daytona Beach, Florida. In view of the record evidence, including
the fact that American Taxi operated radio transmitters without a
license after notice that such activity violated the Act and the
Commission's rules ("Rules"), the NAL proposed a forfeiture of $20,000
against American Taxi for violation of section 301 of the Act.
American Taxi submitted a response to the NAL requesting cancellation
of the proposed forfeiture arguing that: (1) it was operating pursuant
to a license, and (2) it was never warned that its actions violated
the Act.
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Act, section 1.80 of the Rules, and the
Forfeiture Policy Statement. In examining American Taxi's response,
section 503(b) of the Act requires that the Commission 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 other such matters as
justice may require. As discussed below, we have considered American
Taxi's response in light of these statutory factors and impose a
$20,000 forfeiture.
4. Section 301 of the Act states 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 granted under the provisions of the Act. On
September 27 and 28, 2009 and November 22, 2009, agents from the Tampa
Office observed unlicensed radio transmitters operating on the
frequency 152.3900 MHz from American Taxi's business in Daytona Beach,
Florida. In its NAL Response, American Taxi does not deny that it
operated radio transmitters on the dates in question. It alleges,
however, that it was operating legally with the consent of The Plaza
Resort & Spa, the licensee authorized to operate on the frequency of
152.3900 MHz in Daytona Beach, Florida.
5. As discussed below and based on the evidence before us, we are
unpersuaded by American Taxi's arguments that it was operating its
radios on 152.3900 MHz with the consent of the licensee. American Taxi
asserts that The Plaza Resort & Spa purchased radios from a vendor for
use by taxis about ten years ago. It further claims that the vendor
later sold radios directly to taxi companies, including American Taxi,
and programmed those radios on The Plaza Resort & Spa's frequencies.
American Taxi asserts that the vendor would not have programmed
152.3900 MHz into the transmitters without authorization from the
licensee. However, American Taxi was unable to provide corroboration
of its assertions regarding the radio vendor, or to provide a copy of
a written agreement or a contact with The Plaza Resort and Spa who
could confirm an agreement or any other evidence of the agreement's
existence. According to the licensee, The Plaza Resort & Spa, there
were no verbal or written agreements with any other entities to use
its assigned frequencies. Moreover, assuming arguendo that The Plaza
Resort & Spa authorized other entities to use its frequencies in the
past, there is no evidence of any such agreement with American Taxi.
Thus, we confirm our finding in the NAL and conclude that American
Taxi was not authorized to transmit on the frequency 152.3900 MHz.
6. American Taxi's owner also alleges he never received any verbal or
written warnings from the Tampa Office agents on September 28, 2009,
and therefore its violations were not willful or repeated. We
disagree. During the September 28, 2009 inspection of American Taxi's
business premises, the agents from the Tampa Office asked to speak to
the person in charge at American Taxi. The agents were informed that
the owner was out of town and proceeded to speak with the female
dispatcher, who was the only person employed by American Taxi visibly
present. The agents provided the written warning to the dispatcher,
and warned the owner about the violations via a phone number provided
by the dispatcher. The voice that self-identified as American Taxi's
owner on September 28, 2009 sounded the same as the voice that
self-identified as the owner in all communications and recorded
messages with the Tampa Office, ranging from September 28, 2009 to
December 22, 2009. Moreover, the "Commission has long held that
licensees and other Commission regulatees are responsible for the acts
and omissions of their employees and independent contractors," and
when the actions or omissions of independent contractors or employees
have resulted in violations, the Commission has "consistently refused
to excuse licensees from forfeiture penalties." Therefore, we conclude
that because American Taxi continued to operate on an unauthorized
frequency after it received notice, both verbally and in writing that
such activity violated the Act and the Rules, its actions were
intentional.
7. Moreover, we do not find persuasive American Taxi's arguments that its
violations were not willful or repeated. Section 312(f)(1) 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...." Thus, American Taxi need not
have known that its actions violated section 301 of the Act for its
violation to have been willful. American Taxi need only have
consciously and deliberately operated the radio transmitters. As
American Taxi communicated with its taxi cab drivers on an
unauthorized frequency via its radios on more than one day, its
violations were willful and repeated. Thus, based on the evidence
before us, we find that American Taxi willfully and repeatedly
violated section 301 of the Act by operating radio transmitters on the
frequency 152.3900 MHz without the requisite Commission authorization.
Accordingly, pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement, we conclude that
cancellation of the forfeiture is unwarranted and impose 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, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, American Taxi
Shuttle and Limo, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violations of section
301 of the Act.
9. 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 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.
American Taxi shall also send electronic notification to
SCR-Response@fcc.gov on the date said payment is made.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail Return Receipt Requested to American
Taxi Shuttle and Limo, Inc. at 105 Thomasson Ave., Daytona Beach, FL
32117.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
American Taxi Shuttle and Limo, Inc., Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13387 (Enf. Bur. 2010).
See Letter from Donald Jackson, Owner, American Taxi Shuttle and Limo,
Inc., to Ralph Barlow, District Director, Tampa Office, Enforcement Bureau
(dated October 5, 2010) ("NAL Response").
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) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
NAL Response at 1.
Id.
Id.
Id.
Id.
The Plaza Resort and Spa indicated to the Tampa Office agents that it did
not have any verbal or written agreements with any other entities to use
its frequencies on September 28, 2009 and again on November 18 and 19,
2010.
American Taxi's owner asserts that the agent spoke to another dispatcher
on September 28, 2009, not him. See NAL Response at 1. However, the agents
later spoke to this dispatcher and received voice messages from him. The
voice that the agents believe to be this dispatcher did not sound like the
voice that self-identified as American Taxi's owner.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 P: 7 (2002); MTD, Inc., Memorandum Opinion and Order, 6
FCC Rcd 34 (1991) (holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., Forfeiture Order, 19 FCC Rcd 6248
(Enf. Bur. 2004) (holding a licensee liable for its employee's failure to
conduct weekly EAS tests and to maintain the "issues/programs" list); and
Saga Communications of New England, Inc., Forfeiture Order, 19 FCC Rcd
19743 (Enf. Bur. 2004) (holding a licensee responsible for its employee's
broadcast of a telephone conversation without first informing the other
party of intention to do so).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420 P: 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, Inc.,
Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984)).
47 U.S.C. S: 312(f)(1). 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:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1043
4
Federal Communications Commission DA 11-1043