**Before the**

## Federal Communications Commission {#federal-communications-commission .unnumbered}

**Washington, D.C. 20554**

)

In the Matter of ) File No. EB-03-PA-029

)

Best Wok ) NAL/Acct. No. 200432400001

)

Westville, New Jersey ) FRN: 0009-3455-62

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: February 26, 2004

By the District Director, Philadelphia Office, Enforcement Bureau:

# I. INTRODUCTION {#i.-introduction .unnumbered}

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Best Wok has apparently violated Section 301 of the
    Communications Act of 1934, as amended (the "Act").[^1] The
    violation occurred because Best Wok operated radio transmitting
    equipment on the frequency 145.8376 MHz without a license issued by
    the FCC. We conclude that Best Wok is apparently liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000).

## BACKGROUND

2.  On September 4, 2001, the FCC Enforcement Bureau received
    information that Best Wok, a restaurant in Westville, New Jersey,
    was operating radio transmitting equipment in the Two Meter Amateur
    Radio Service Band on the frequency 145.835 MHz without a license.
    On October 16, 2001, the FCC issued a letter to Best Wok at 1070
    Delsea Drive, Westville, New Jersey 08093. The letter warned the
    addressee that it was in violation of Section 301 of the Act for
    operating radio transmitting equipment in the Two-Meter Amateur
    Radio Service Band (145.83 MHz) without a license and explained the
    penalties for continued operation including a monetary forfeiture.
    According to the certified mail return receipt from the Post Office,
    Best Wok received the warning letter on October 25, 2001.

3.  On October 16, 2002, the FCC Enforcement Bureau received information
    that Best Wok was again operating on the frequency 145.835 MHz
    without a license. Therefore, on January 22, 2003, the FCC issued
    another letter to Best Wok warning that it was in violation of
    Section 301 of the Act for operating radio transmitting equipment in
    the Two-Meter Amateur Radio Service Band (145.835 MHz) without a
    license. According to the certified mail return receipt from the
    Post Office, Best Wok received the warning letter on January 27,
    2003.

4.  During the morning of February 28, 2003, an FCC agent with the
    Philadelphia Office drove to the Westville, New Jersey area to
    determine if Best Wok was operating radio transmitting equipment on
    the frequency 145.835 MHz. At approximately 10:45 a.m., the agent
    began monitoring a constant radio signal on or near the frequency
    145.835 MHz. At 11:10 a.m., the agent used direction finding
    techniques to positively determine that the source of the
    transmissions was located at Best Wok, 1070 Delsea Drive, Westville,
    New Jersey.

5.  At 11:30 a.m. on February 28, 2003, the agent entered Best Wok and
    inspected the radio transmitting equipment in the presence of the
    restaurant manager, Sae C. Hauwo. The agent found that Best Wok was
    operating a long distance cordless telephone system. The system was
    comprised of a base unit that was located under the counter of the
    restaurant and a mobile unit that was in Hauwo's vehicle. There were
    no identifying markings on the mobile unit but the base unit was
    marked with the Model Number GSM WLT-988. The FCC agent used
    frequency-measuring equipment to determine that the base unit
    actually operated on the frequency 145.8376 MHz and not the
    frequency 145.835 MHz as specified in the complaints. Hauwo stated
    that he installed the long range cordless telephone system so that
    his employees could answer customers' telephone calls while making
    deliveries in their vehicles. Hauwo stated that he purchased the
    long range cordless telephone system in another country and brought
    it into the United States to operate at the restaurant.

6.  Hauwo and Best Wok were unable to provide the FCC agent with a
    license authorizing the operation of the radio transmitting
    equipment. Hauwo acknowledged that Best Wok received the October 16,
    2001 unlicensed warning letter from the FCC Enforcement Bureau.
    Hauwo stated that when the restaurant received the letter, it ceased
    operation of the long range cordless telephone system and purchased
    an alternative set of radios from Radio Shack that operated on the
    Multi-Use Radio Service frequency 154.600 MHz. He said that because
    the alternative radios did not provide sufficient coverage, Best Wok
    began operating the long distance cordless telephone system again.

## DISCUSSION

7.  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 except under and in accordance with this Act and
    with a license in that behalf granted under the provisions of this
    Act. On February 28, 2003, Best Wok operated radio transmitting
    equipment on the Two-Meter Amateur Radio Service frequency 145.8376
    MHz. Neither Best Wok nor any of its employees held a license to
    operate a station in the Amateur Radio Service Band.

8.  Based on the evidence before us, we find that Best Wok willfully[^2]
    violated Section 301 of the Act. *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*"),[^3]
    sets the base forfeiture amount for operating radio transmitting
    equipment without a license at \$10,000. In assessing the monetary
    forfeiture amount, we must take into account the statutory factors
    set forth in Section 503(b)(2)(D) of the Act,[^4] 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 ten thousand dollar (\$10,000)
    monetary forfeiture is warranted.

## IV. ORDERING CLAUSES {#iv.-ordering-clauses .unnumbered}

9.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^5] and Sections 0.111, 0.311 and 1.80 of the Commission's
    Rules,[^6] ("Rules") Best Wok is hereby NOTIFIED of its APPARENT
    LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
    (\$10,000) for operating radio-transmitting equipment on the
    frequency 145.8376 MHz without a license.

10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NOTICE OF APPARENT
    LIABILITY, Best Wok 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. 200432400001
    and FRN: 0009-3455-62.

12. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Spectrum Enforcement Division, 445
    12th Street, S.W., Washington, D.C. 20554, and MUST INCLUDE THE
    NAL/Acct. No. 200432400001 and FRN: 0009-3455-62.

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 Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^7]

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 Spectrum
    Enforcement 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 Best Wok, 1070 Delsea Drive, Westville, New Jersey 08093.

FEDERAL COMMUNICATIONS COMMISSION

John E. Rahtes

District Director

Philadelphia Office

Attachment A: Condensed List of Small Entities

[^1]: 47 U.S.C. § 301.

[^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]: 47 C.F.R. § 1.80.

[^4]: 47 U.S.C § 503(b)(2)(D).

[^5]: 47 U.S.C § 503(b).

[^6]: 47 C.F.R. §§ 0.111, and 0.311.

[^7]: See 47 C.F.R. § 1.1914.