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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-221
Mexicana Car and Limousine Services )
WNXK978 ) NAL/Acct. No.
200332380009
Jackson Heights, NY )
) FRN: 0005-1515-01
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 2,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that Mexicana Car and
Limousine Services (``Mexicana'') has apparently
violated Section 90.403(a)(2) of the Commission's Rules
(the ``Rules''),1 by operating radio transmitting
equipment on an unauthorized frequency of 31.70 MHz.
We conclude that Mexicana is apparently liable for
forfeiture in the amount of four thousand dollars
($4,000).
II. BACKGROUND
2. On September 20, 2002, a Commission agent, using a
mobile direction finding vehicle, monitored the
frequency 31.70 MHz in Jackson Heights, NY, to assess
compliance in the Private Land Mobile Radio Services.
The agent determined that Mexicana, located at 70-18
35th Avenue, Jackson Heights, NY 11372, operated base
and mobile units on a frequency of 31.70 MHz. There
was no evidence of a Commission authorization to
operate this station on a frequency of 31.70 MHz in
Brooklyn, NY.
3. On October 2, 2002, Commission agents, using a
mobile direction finding vehicle, monitored the
frequency 31.70 MHz in Jackson Heights, NY. The agents
determined that Mexicana operated on a frequency of
31.70 MHz. The agents conducted a station inspection
and determined that Mexicana's base transmitter and
mobile units were operating on an unauthorized
frequency of 31.70 MHz. The agents advised Francisco
Carreon, owner of Mexicana, that Mexicana's base
station and mobile units were operating on an
unauthorized frequency of 31.70 MHz.
4. On October 8, 2002, a Commission agent monitored
the frequency 31.70 MHz in Jackson Heights, NY and
again positively identified transmissions to Mexicana.
5. On October 11, 2002, the New York Office sent a
Notice of Violation, by First Class and Certified Mail
Return Receipt Requested, to Mexicana for operation on
an unauthorized frequency of 31.70 MHz. The New York
Office did not receive a reply to the Notice of
Violation.
III. DISCUSSION
6. Section 90.403(a)(2) of the Commission's Rules
requires that licensees in the private land mobile
radio services shall be directly responsible for the
proper operation and use of each transmitter for which
they are licensed. In this connection, licensees shall
exercise such direction and control as to assure that
the transmitter is being operated in a permissible
manner. A review of Commission's records showed that
Mexicana was granted authority under their license,
WNXK978, to operate on a frequency of 30.68 MHz.
Agents observed the base station and mobile units
operating on a frequency of 31.70 MHz.
7. Based on the evidence before us, we find that,
Mexicana Car and Limousine Services operated radio
transmitting equipment on an unauthorized frequency of
31.70 MHz on September 20, 2002, October 2, 2002 and
October 8, 2002, in willful2 and repeated3 violation of
Section 90.403(a)(2) of the Rules.
8. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement''),4 sets the base
forfeiture amount for using an unauthorized frequency
at $4,000. In assessing the monetary forfeiture
amount, we must take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended,5 (``Act'') which include 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.
Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the
inflation adjustments, we believe that a four thousand
dollar ($4,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act6 and Sections 0.111, 0.311
and 1.80 of the Commission's Rules7, Mexicana Car and
Limousine Services is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for willfully violating
Section 90.403(a)(2) of the Commission's Rules.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of
the release date of this NOTICE OF APPARENT LIABILITY,
Mexicana Car and Limousine Services SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of
the proposed forfeiture.
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of
the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380009 and FRN: 0005-1515-01.
12. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau,
Technical and Public Safety Division, 445 12th Street,
S.W., Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. 200332380009.
13. 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.
14. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivable
Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.8
15. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28,
2002), the FCC is engaged in a two-year tracking
process regarding the size of entities involved in
forfeitures. If you qualify as a small entity and if
you wish to be treated as a small entity for tracking
purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or
in a separate filing to be sent to the Technical and
Public safety Division. Your certification should
indicate whether you, including your parent entity and
its subsidiaries, meet one of the definitions set forth
in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability.
This information will be used for tracking purposes
only. Your response or failure to respond to this
question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding
any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail
Return Receipt Requested, to Mexicana Car and Limousine
Services, 70-18 35TH Avenue, Jackson Heights, NY 11372.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
_________________________
1 47 C.F.R. § 90.403(a)(2).
2
Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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 ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
447 C.F.R. § 1.80.
5
47 U.S.C. § 503(b)(2)(D).
6
47 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.