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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Lakewood Transportation, LLC Lakewood, New Jersey ) ) ) )
   ) ) ) File No.: EB-FIELDNER-13-00007073 NAL/Acct. No.: 201432400001 FRN:
   0023117930




                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: November 12, 2013 Released: November 12, 2013

   By the District Director, Philadelphia Office, Northeast Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Lakewood Transportation, LLC (Lakewood), Lakewood, New Jersey,
       apparently willfully and repeatedly violated Section 301 of the
       Communications Act of 1934 (Act) and Section 1.903(a)-(b) of
       Commission's rules (Rules)^ by operating radio communications
       equipment on an unauthorized frequency. We conclude that Lakewood is
       apparently liable for a forfeiture in the amount of six thousand
       dollars ($6,000).

   II. BACKGROUND

    2. On April 14, 2011, agents of the Enforcement Bureau's Philadelphia
       Office (Philadelphia Office) inspected radio transmitting equipment
       operated by Lakewood at 111 Clifton Avenue, Unit 5, Lakewood, New
       Jersey (Lakewood Business Office). Lakewood operates a taxicab
       business and the radio transmitting equipment was used for dispatching
       taxicabs. The agents found that Lakewood was operating the radio
       transmitting equipment on the frequency 159.675 MHz without a license.
       On April 18, 2011, the Philadelphia Office issued a Notice of
       Unlicensed Operation (NOUO) to Lakewood for operating on 159.675 MHz
       without a license.^

    3. On May 19, 2011, the Philadelphia Office received a response to the
       NOUO from Clasene Joseph, the sole owner of Lakewood, stating that he
       had applied for a license to operate a Private Land Mobile Radio
       Station for Lakewood's radio dispatch service.^ On June 20, 2011, the
       Commission issued a Private Land Mobile Radio Station license (Call
       Sign WQNW564) authorizing Mr. Joseph to operate radio transmitting
       equipment on the frequency 160.0575 MHz in Lakewood, New Jersey. No
       further enforcement action was taken against Mr. Joseph or Lakewood
       with regard to the unlicensed operation on 159.675 MHz.

    4. On March 1, 2013, in response to a complaint of unauthorized
       transmissions on 159.675 MHz in the Lakewood, New Jersey area, agents
       monitored transmissions on the frequency 159.675 MHz and, using radio
       direction finding techniques, determined that the transmissions were
       emanating from the Lakewood Business Office. The agents inspected the
       radio transmitting equipment at the Lakewood Business Office in the
       presence of Lakewood's dispatcher and confirmed that Lakewood was
       operating its dispatch service, which included a base station and
       mobile radios, on the frequency 159.675 MHz. The agent checked the FCC
       database and confirmed that neither Lakewood nor its owner, Clasene
       Joseph, has a license to operate on 159.675 MHz. Before the agents
       departed the Lakewood Business Office, the dispatch service was
       reprogrammed to operate on 160.0575 MHz, the frequency authorized
       under Mr. Joseph's license for Station WQNW564.

   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.^ 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.^ The legislative
       history to Section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both Sections 312 and 503(b) of the Act,^ and
       the Commission has so interpreted the term in the Section 503(b)
       context.^ The Commission may also assess a forfeiture for violations
       that are merely repeated, and not willful.^ The term "repeated" means
       the commission or omission of such act more than once or for more than
       one day.^

   A. Operation on an Unauthorized Frequency

    6. The evidence in this case is sufficient to establish that Lakewood
       violated Section 301 of the Act and Section 1.903(a)-(b) of the Rules.
       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 issued by the Commission.^  Section
       1.903(a) of the Rules requires that stations in the Wireless Radio
       Services must be used and operated only in accordance with the rules
       applicable to their particular service and with a valid authorization
       granted by the Commission.^ In addition, Section 1.903(b) provides
       that the holding of an authorization does not create any rights beyond
       the terms, conditions, and period specified in the authorization.^
       During the inspection on March 1, 2013, agents found that Lakewood
       operated its base station and mobile units on the frequency 159.675
       MHz without a license. The license for Station WQNW564 that Mr. Joseph
       obtained for Lakewood's dispatch service only authorized operation on
       the frequency 160.0575 MHz. Therefore, based on the evidence before
       us, we find that Lakewood apparently willfully and repeatedly violated
       Section 301 of the Act and Section 1.903(a)-(b) of the Rules by
       operating its radio transmitting equipment on an unauthorized
       frequency.

    B. Proposed Forfeiture Amount

    7. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for using an
       unauthorized frequency is $4,000.^ 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.^ Consequently, the base forfeiture amount is subject to
       adjustment. Lakewood was aware that it was permitted to operate only
       on an authorized frequency, as evidenced by the NOUO issued on April
       18, 2011 and Lakewood's subsequent application for a license to
       operate on the frequency 160.0575 MHz. Thus, we find that an upward
       adjustment to the forfeiture amount of $2,000 is warranted.^  Applying
       the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
       statutory factors to the instant case, we conclude that Lakewood is
       apparently liable for a forfeiture in the amount of $6,000.

   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 of the Commission's rules, Lakewood
       Transportation, LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR
       A FORFEITURE in the amount of six thousand dollars ($6,000) for
       violations of Section 301 of the Act and Section 1.903(a)-(b) of the
       Rules.^

    9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) calendar days of the release
       date of this Notice of Apparent Liability for Forfeiture, Lakewood
       Transportation, LLC, 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 must be made by check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account Number
       and FRN referenced above. Lakewood Transportation, LLC, shall also
       send electronic notification on the date said payment is made to
       [1]NER-Response@fcc.gov. Regardless of the form of payment, a
       completed FCC Form 159 (Remittance Advice) must be submitted.^ When
       completing the FCC Form 159, enter the Account Number in block number
       23A (call sign/other ID) and enter the letters "FORF" in block number
       24A (payment type code).  Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   11. Any request to make full payment over time under an installment plan
       should be sent to:  Chief Financial Officer--Financial Operations,
       Federal Communications Commission, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C. 20554.^  If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

   12. 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, Northeast
       Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
       2300 East Lincoln Highway, Langhorne, Pennsylvania 19047, and include
       the NAL/Acct. No. referenced in the caption. Lakewood Transportation,
       LLC, also shall e-mail the written response to
       [2]NER-Response@fcc.gov. 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 both Certified Mail, Return Receipt
       Requested, and first class mail to Lakewood Transportation, LLC, at
       its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   David C. Dombrowski

   District Director

   Philadelphia Office

   Northeast Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301; 47 C.F.R. S 1.903(a)-(b).

   ^ See Lakewood Transportation,  Notice of Unlicensed Operation (Enf. Bur.,
   Philadelphia Office rel. April 18, 2011).

   ^ Letter from Clasene Joseph to Philadelphia Office (May 19, 2011) (on
   file in EB-FIELDNER-13-00007073).

   ^ 47 U.S.C. S 503(b).

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in Section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
   licensee knew that he was doing the act in question, regardless of whether
   there was an intent to violate the law. `Repeated' means more than once,
   or where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   Sections 312 and 503, and are consistent with the Commission's application
   of those terms . . . .").

   ^ See, e.g., Application for Review of Southern California Broadcasting
   Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991),
   recons. denied,  7 FCC Rcd 3454 (1992).

   ^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
   Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   ^ 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." See Callais Cablevision, Inc., 16 FCC Rcd  at
   1362, para. 9.

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. S 1.903(a).

   ^ 47 C.F.R. S 1.903(b).

   ^ 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), recons.
   denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See, e.g., Pacific Spanish Network, Inc., Notice of Apparent Liability
   for Forfeiture, 26 FCC Rcd 2170 (Enf. Bur. 2011) (proposing $4,000 base
   forfeiture amount and upward adjustment of $2,000 where licensee's
   knowledge of unauthorized operation was evidenced by a warning letter and
   two license applications).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
   1.903(a)-(b).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ See 47 C.F.R. S 1.1914.

   ^ 47 C.F.R. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 13-2154

   Federal Communications Commission DA 13-2154

References

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