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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Paisa 2 Car and Limousine Service, ) File No.: EB-09-NY-0213
Inc.
) NAL/Acct. No: 201032380002
Licensee of WQEQ855
) FRN: 0014768220
Woodside, NY
)
)
)
Memorandum opinion and order
Adopted: October 20, 2011 Released: October 21, 2011
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order ("MO&O"), issued pursuant to
section 405 of the Communications Act of 1934, as amended ("Act"), and
section 1.106 of the Commission's rules, we grant in part and deny in
part the Petition for Reconsideration ("Petition") filed on July 15,
2010, by Paisa 2 Car and Limousine Service, Inc. ("Paisa"), the
licensee of private land mobile station WQEQ855, in Woodside, New
York. Paisa seeks reconsideration of a Forfeiture Order imposing a
$4,000 forfeiture for Paisa's willful and repeated operation on an
unauthorized frequency in violation of section 1.903(a) of the
Commission's rules ("Rules"). For the reasons set forth below, the
Petition is granted in part and denied in part.
II. Background
2. On October 5, 2009, the Enforcement Bureau's New York Office issued to
Paisa a Notice of Apparent Liability for Forfeiture ("NAL") in the
amount of $4,000, finding that Paisa apparently willfully and
repeatedly violated section 1.903(a) of the Rules by operating a base
station and mobile stations on an unauthorized frequency. Paisa did
not file a response to the NAL and on June 18, 2010, the Enforcement
Bureau's Northeast Region issued a Forfeiture Order affirming the
findings in the NAL and assessing a $4,000 forfeiture.
3. In the Petition, Paisa claims that it never received the NAL,
speculating that the NAL was mistakenly delivered to one of the other
two businesses that are located at the same mailing address. In
support of this claim, Paisa submits documentation showing that two
other businesses share Paisa's mailing address. As to the underlying
findings in the NAL, Paisa asserts that it did not know it was
operating on an unauthorized frequency because the base station and
mobile radios were programmed by Paisa's radio vendor. Furthermore,
Paisa requests a reduction or cancellation of the forfeiture based on
its inability to pay.
III. Discussion
4. A petition for reconsideration that relies on facts not previously
presented to the designated authority will be entertained only if: (1)
the designated authority (the Enforcement Bureau in this instance)
determines that consideration of the new facts is required to serve
the public interest; (2) the petition relies on facts that relate to
events that occurred or circumstances that have changed since the last
opportunity to present such matters; or (3) the petition relies on
facts unknown to the petitioner until after his last opportunity to
present such matters. In light of the evidence submitted by Paisa in
support of its claim that it did not receive the NAL, we find that the
public interest warrants consideration of Paisa's Petition.
5. We decline to cancel the forfeiture based on Paisa's claim in its
Petition that it did not know that it was operating on an unauthorized
frequency. It is well established that administrative oversight or
inadvertence is not a mitigating factor warranting cancellation or
reduction of a forfeiture. Paisa's claim that it relied on its radio
vendor to program its base station and mobile radios does not provide
grounds for cancellation or reduction because licensees are held
responsible and accountable for the acts or omissions of their agents.
6. Paisa also asserts that the forfeiture would pose a financial hardship
and requests reduction or cancellation of the forfeiture on this
basis. With regard to an individual's or entity's inability to pay,
the Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. We have reviewed
Paisa's submitted documentation and conclude that the forfeiture
should be reduced to $500, based on its documented inability to pay
the forfeiture amount imposed in the Forfeiture Order.
IV. ordering clauses
7. Accordingly, IT IS ORDERED that, pursuant to section 405 of the
Communications Act of 1934, as amended, and section 1.106 of the
Commission's rules, that the Petition for Reconsideration filed by
Paisa 2 Car and Limousine Service, Inc. IS GRANTED IN PART AND DENIED
IN PART.
8. IT IS ALSO ORDERED that, pursuant to section 503(b) of the Act, and
sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules, Paisa
2 Car and Limousine Service, Inc. IS LIABLE FOR A MONETARY FORFEITURE
in the amount of five hundred dollars ($500) for violations of section
1.903(a) of the rules.
9. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the rules within thirty (30) days of the release of
this Memorandum Opinion and Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for enforcement pursuant to section 504(a) of
the Act. Payment of the forfeiture must be made by credit card, 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.
Paisa 2 Car and Limousine Service, Inc. shall also send electronic
notification to NER-Response@fcc.gov on the date said payment is made.
10. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both regular mail and by certified mail, return receipt
requested, to Paisa at 69-11 48th Avenue, Woodside, New York, 11377.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Paisa Car Service, Petition for Reconsideration (filed July 15, 2010).
47 C.F.R. S: 1.903(a).
Paisa 2 Car and Limousine Service, Inc., Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 201032380002 (Enf. Bur., New York Office,
released Oct. 5, 2009).
Paisa 2 Car and Limousine Service, Inc., Forfeiture Order, 25 FCC Rcd 7498
(Northeast Region Enf. Bur. 2010).
Petition at 1.
Id. The two other businesses are A&K Auto, Inc. and Genesis Auto Repairs
and Body Shop, both of which are located at 69-11 48th Avenue, Woodside,
New York where Paisa's business also is located. The New York Office sent
the NAL via regular mail and certified mail, return receipt requested. The
signature on the certified mail return receipt was illegible.
Petition at 1.
Id.
47 C.F.R. S:1.106(c).
See See, e.g., Application for Review of Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387 (1991)(stating
that "inadvertence ... is at best, ignorance of the law, which the
Commission does not consider a mitigating circumstance").
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002); 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 PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-1738
2
Federal Communications Commission DA 11-1738