**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number EB-04-PA-079        |
|                                  |   |                                 |
| L F Driscoll Company             | ) | NAL/Acct. No.200532400002       |
|                                  |   |                                 |
| Licensee of Station WPFM499      | ) | FRN 0007-93-6800                |
|                                  |   |                                 |
| Philadelphia, Pennsylvania       | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: March 11, 2005

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

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that L F Driscoll Company ("Driscoll"), licensee of Land Mobile
    Radio Station WPFM499, apparently willfully and repeatedly violated
    Section 1.903(a) of the Commission\'s Rules (\"Rules\")[^1] by
    operating radio transmitting equipment on unauthorized frequencies.
    We conclude, pursuant to Section 503(b) of the Communications Act of
    1934, as amended (\"Act\"),[^2] that Driscoll is apparently liable
    for a forfeiture in the amount of eight thousand dollars (\$8,000).

# BACKGROUND

2.  On April 22, 2004, an agent with the FCC Enforcement Bureau's
    Philadelphia Office detected an unidentified repeater station
    transmitting on the frequency 462.625 MHz. Using an FCC mobile
    direction finding vehicle, the agent determined that the source of
    the transmissions was located at the Children's Hospital of
    Philadelphia ("Children's Hospital"). The agent conducted an
    inspection at Children's Hospital and found that Driscoll was the
    owner and operator of the repeater station operating on 462.625 MHz
    . The agent also determined that the mobile units that activated the
    repeater were operating on 467.625 MHz. Driscoll's license for
    station WPFM499 does not authorize it to operate a repeater station
    at Children's Hospital on the frequency 463.750 MHz or mobile units
    on the frequency 467.625 MHz.

3.  On April 26, 2004, the Philadelphia Office sent a letter of inquiry
    ("LOI") to Driscoll requesting information about Driscoll's radio
    transmitting equipment at Children's Hospital. In a response letter
    dated May 10, 2004, Driscoll admitted that it was not authorized to
    operate the repeater station on the frequency 462.625 MHz or the
    mobile units on 467.625 MHz. Driscoll also admitted that it had been
    operating the repeater station and mobile units on those frequencies
    at Children's Hospital for approximately ten years. Driscoll stated
    that the unauthorized frequencies were programmed into the repeater
    and mobile units by its prior radio vendor.

# DISCUSSION

4.  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.[^3] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^4]

5.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Service must be used and operated only in accordance with the
    rules applicable to their particular service as set forth in this
    title and with a valid authorization granted by the Commission under
    the provisions of this part. On April 22, 2004, an FCC agent
    determined that Driscoll operated a repeater station on the
    frequency 462.625 MHz and mobile units on the frequency 467.625 MHz
    at Children's Hospital without a valid Commission authorization. In
    its response to the LOI, Driscoll admitted that it did not have a
    license to operate the repeater station on 462.625 MHz or the mobile
    units on 467.625 MHz. Driscoll also admitted that it had been
    operating on those frequencies for approximately ten years.
    Accordingly, based on the evidence before us, we find that Driscoll
    apparently willfully and repeatedly violated Section 1.903(a) of the
    Rules by operating radio transmitting equipment without
    authorization on the frequencies 462.625 MHz and 467.625 MHz.[^5]

6.  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 using an unauthorized
    frequency is \$4,000.[^6] 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.[^7] Applying the *Forfeiture Policy Statement*, Section
    1.80, and the statutory factors, an eight thousand dollar (\$8,000)
    forfeiture is warranted.

# ORDERING CLAUSES

7.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80 of the Commission\'s Rules, L F Driscoll Company is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of eight thousand dollars (\$8,000) for violations of
    Section 1.903(a) of the Rules.[^8]

8.  **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, L F Driscoll
    Company **SHALL PAY** the full amount of the proposed forfeiture or
    **SHALL FILE** a written statement seeking reduction or cancellation
    of the proposed forfeiture.

9.  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
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8^th^ Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259.

10. The response, if any, must be mailed to Federal Communications
    Commission, Philadelphia Office, Enforcement Bureau, Northeast
    Region, One Oxford Valley Building, Suite 404, 2300 East Lincoln
    Highway, Langhorne, Pennsylvania 19047 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.

11. 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.

12. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^9]

13. **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 L F Driscoll Company at its
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

John E. Rahtes

District Director

Philadelphia Office

Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: Section 312(f)(1) of the Act, 47 U.S.C. § 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).

[^4]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^5]: We note that Driscoll, as a licensee in the Private Land Mobile
    Service, is responsible for ensuring that it is operating on
    authorized frequencies. The fact that Driscoll's previous radio
    vendor programmed the repeater and mobile units with an unauthorized
    frequency does not affect Driscoll's apparent liability at issue
    here.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).

[^9]: ^8^*See* 47 C.F.R. § 1.1914.