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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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In the Matter of File Number: EB-06-NY-031
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New Relampago Car Service Corp. NAL/Acct. No: 200732380006
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Brooklyn, NY FRN: 0014 7796 80
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 31, 2007
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that New Relampago Car Service Corp. ("New Relampago") in Brooklyn,
NY, apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended ("Act"), by operating a base
station and mobile units on the frequency 35.08 MHz without the
required license. We conclude, pursuant to Section 503(b) of the Act,
that New Relampago is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 7, 2006, in response to an interference complaint, an
agent in the Commission's New York Office conducted a station
inspection of New Relampago, which is located at 361 Union Ave,
Brooklyn, NY 11211. The agent conducted the inspection with one of New
Relampago's owners. The agent determined that New Relampago operated a
base station and mobile units on the frequency 35.08 MHz.
3. During the inspection, New Relampago stated to the agent that it did
not have a copy of its license at the station. New Relampago also
directed the agent to its radio service technician, who stated that an
application had been filed with the FCC and that New Relampago was
licensed to operate. At the agent's request, New Relampago agreed to
send a copy of its license to the agent via facsimile. The agent
warned New Relampago that it needed to have its FCC license posted at
all times and that, if it was unable to provide the agent with a
license, it would be in violation of the FCC's Rules and must cease
operations immediately.
4. Later that day, the agent searched the Commission's database and found
that there was no evidence of a Commission authorization for New
Relampago to operate a base station and mobile units on the frequency
35.08 MHz in Brooklyn, NY. The agent contacted New Relampago by
telephone and informed the owner that no records were found on the FCC
database for any current license or application for New Relampago Car
Service Corp. The only license in the database for New Relampago had
expired on February 21, 2005. The agent again warned New Relampago to
cease all operations and advised the owner that failure to do so would
subject New Relampago to a possible fine.
5. On February 9, 2006, the agent, using a mobile direction finding
vehicle, monitored the frequency 35.08 MHz and determined that the
transmissions were coming from New Relampago, located at 361 Union
Ave, Brooklyn, NY 11211. There continued to be no evidence in the
Commission's database of an authorization for New Relampago to operate
a base station and mobile units on the frequency 35.08 MHz in
Brooklyn, NY.
6. On February 28, 2006, the New York Office sent a Notice of Unlicensed
Operation to New Relampago for operating a base station and mobile
units on the frequency 35.08 MHz, without the required license, in
violation of Section 301 of the Communications Act. The Notice of
Unlicensed Operation sent via certified mail was signed for and dated
on March 22, 2006, and the certified mail return receipt was returned
to the New York Office by the U.S. Postal Service. To date, the New
York Office has not received a reply to the Notice of Unlicensed
Operation.
7. On March 22, 2006, a Commission agent, using a mobile direction
finding vehicle, monitored the frequency 35.08 MHz and determined that
the transmissions were coming from New Relampago, located at 361 Union
Ave, Brooklyn, NY 11211. There continued to be no evidence in the
Commission's database of an authorization for New Relampago to operate
a base station and mobile units on the frequency 35.08 MHz in
Brooklyn, NY.
III. DISCUSSION
8. 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) of the Act 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.
9. 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
February 7, 2006, during an inspection at New Relampago's station, a
Commission agent determined that New Relampago was operating a base
station and mobile units on the frequency 35.08 MHz without
authorization. Notwithstanding an oral warning during the inspection,
the agent found on February 9, 2006, that New Relampago continued to
operate a base station and mobile units on the frequency 35.08 MHz
without authorization. In addition, even after receiving a written
Notice of Unlicensed Operation from the New York Office, which was
dated February 28, 2006, the agent found on March 22, 2006 that New
Relampago continued to operate a base station and mobile units without
authorization. Because New Relampago continued to operate its base
station and mobile units without authorization after receiving oral
and written warnings from the agent, we find that New Relampago's
actions were willful. New Relampago operated without a license for
more than one day; therefore, we conclude that New Relampago's
apparent violation was repeated.
10. Based on the evidence before us, we find that New Relampago apparently
willfully and repeatedly violated Section 301 of the Act by operating
a base station and mobile units on the frequency 35.08 MHz, without
the required license.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operation 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)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that New
Relampago is apparently liable for a ($10, 000) forfeiture.
IV. ORDERING CLAUSES
12. 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 Commission's Rules, New Relampago Car Service
Corp. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars ($10,000) for violation of
Section 301 of the Act.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, New Relampago Car
Service Corp. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
14. 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
16. 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.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
18. 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 New Relampago Car Service Corp. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
New Relampago's license for WPGP978 was for operation of one base station
and 100 mobile units on 35.08 MHz. The license was issued on January 27,
2000 and expired on February 21, 2005.
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).
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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
47 C.F.R. S 1.1914.
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(continued....)
Federal Communications Commission
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Federal Communications Commission