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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-08-NY-0378
Eight Friends Limo Service Inc ) NAL/Acct. No. 200932380006
Newark, New Jersey ) FRN: 0018 4159 84
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 11, 2009
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 Eight Friends Limo Service Inc ("Eight Friends") DBA Liberty Auto
Cab in Newark, New Jersey, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act"), by operating a base station on the frequencies 461.400 MHz
and 469.450 MHz and mobile units on the frequencies 466.400 MHz and
469.450 MHz, without the required license. We conclude, pursuant to
Section 503(b) of the Act, that Eight Friends is apparently liable for
a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On October 22, 2008, in response to an interference complaint, an
agent in the Commission's New York Office, using a mobile direction
finding vehicle, monitored the frequency, 469.450 MHz and observed a
car service operating both a base station and mobile units on that
frequency. The agent determined that the transmissions were coming
from Eight Friends located at 528 Market Street, Newark, New Jersey
07105. There was no evidence in the Commission's database of an
authorization for Eight Friends to operate a base station and mobile
units on the frequency 469.450 MHz in Newark, New Jersey.
3. On October 23, 2008, a Commission agent, using a mobile direction
finding vehicle, monitored the frequency, 469.450 MHz and again
determined that the transmissions were coming from Eight Friends
located at 528 Market Street, Newark, New Jersey 07105. The agent
conducted an inspection of the car service with one of the owners of
Eight Friends and confirmed that Eight Friends operated a base station
and mobile units on the frequency 469.450 MHz. The agent asked the
owner for Eight Friends' FCC license, but was only shown the license
of another car service, which the owner of Eight Friends claimed was
transferred to them approximately two years ago. The license shown to
the agent only referred to another car service at a different
location. There was no reference to Eight Friends at 528 Market
Street, Newark, New Jersey. The agent advised the owner to cease
operating without an FCC license and to apply as soon as possible for
a license for Eight Friends to operate at that location. The owner
acknowledged the warning and said he would look into the matter
immediately.
4. On October 24, 2008, the New York Office sent a Notice of Unlicensed
Operation to Eight Friends for operating a base station and mobile
units on the frequency 469.450 MHz, without the required license, in
violation of Section 301 of the Act. The Notice of Unlicensed
Operation sent via certified mail was signed for on October 27, 2008,
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.
5. On November 12, 2008, a Commission agent, using a mobile direction
finding vehicle, monitored the frequency, 469.450 MHz and observed no
activity. The agent did observe transmissions on 461.400 MHz, which
appeared to be that of a base station and transmissions on 466.400
MHz, which appeared to be that of mobile units. The agent determined
that the transmissions were coming from Eight Friends located at 528
Market Street, Newark, New Jersey 07105. The agent conducted an
inspection of the car service with another one of the owners of Eight
Friends, and confirmed that Eight Friends operated a base station on
the frequency 461.400 MHz and mobile units on the frequency 466.400
MHz. The agent asked the owner for Eight Friends' FCC license for this
operation, but was not shown any license for authorization to operate
a base station on the frequency 461.400 MHz or mobile units on the
frequency 466.400 MHz. The agent advised the owner to cease operating
without an FCC license and to apply for a license as soon as possible.
The agent advised the owner that failure to do so could result in a
monetary forfeiture. The owner acknowledged the warning and said he
would look into the matter immediately.
6. On November 20, 2008, a Commission agent, using a mobile direction
finding vehicle, monitored the frequencies 461.400 MHz and 466.400 MHz
and determined that the transmissions were coming from Eight Friends
located at 528 Market Street, Newark, New Jersey 07105. The agent
observed that Eight Friends was operating a base station on the
frequency 461.400 MHz and mobile units on the frequency 466.400 MHz.
7. On May 4, 2009, a Commission agent researched the FCC license database
and found that Eight Friends applied for and was granted a FCC license
under the name Eight Friends Limo Service Inc on January 5, 2009,
under call sign WQJU214, at the location 528 Market St, Newark, New
Jersey.
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
October 22, 2008 and October 23, 2008, Commission agents determined
that Eight Friends operated a base station and mobile units on the
frequency 469.400 MHz, without authorization. On November 12, 2008,
and November 20, 2008, Commission agents determined that Eight Friends
operated a base station on the frequency 461.400 MHz and mobile units
on the frequency 466.400 MHz, without authorization. The unauthorized
operations on November 12, 2008, and November 20, 2008, occurred
notwithstanding the oral warning issued by an FCC agent on October 23,
2008, and a written warning issued by the New York Office on October
24, 2008. Because Eight Friends continued to operate its base station
and mobile units without authorization after receiving oral and
written warnings, we find that Eight Friends' actions were willful.
Eight Friends operated without a license for more than one day;
therefore, we conclude that Eight Friends' apparent violation was
repeated.
10. Based on the evidence before us, we find that Eight Friends
apparently willfully and repeatedly violated Section 301 of the Act by
operating a base station on the frequencies 461.400 MHz and 469.450
MHz and mobile units on the frequencies 466.400 MHz and 469.450 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)(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, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Eight Friends 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, Eight Friends Limo Service
Inc is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of ten thousand dollars ($10,000) for violations of
Section 301 of the Act.
13. 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 for Forfeiture, Eight Friends Limo
Service Inc 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/Account Number and FRN Number 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. If payment is made, Eight
Friends Limo Service Inc shall send electronic notification on the
date said payment is made to NER-Response@fcc.gov.
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 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. 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 Eight Friends Limo Service Inc. 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).
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.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission