**Before the**

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

**Washington, D.C. 20554**

)

In the Matter of ) File No. EB-02-PA-298

)

New York Radio Service ) NAL/Acct. No. 200332400005

WPTM988 )

Brooklyn, New York ) FRN: 0005-1516-83

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: January 6, 2003

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 New York Radio Service ("NYRS") has apparently violated Section
    1.903(a) of the Commission's Rules (the "Rules").[^1] This violation
    occurred because NYRS operated station WPTM988 on the frequency
    452.000 MHz at the unauthorized location of 700 Victory Boulevard,
    Staten Island, New York (\"Parkview House\"). We conclude that NYRS
    is apparently liable for a forfeiture in the amount of four thousand
    dollars (\$4,000).

## BACKGROUND

2.  On July 26, 2002, the Philadelphia Office received information that
    radio-transmitting equipment was being operated at the Parkview
    House without authorization from the Commission. On July 30, 2002
    and July 31, 2002, FCC agents from the Philadelphia Office and New
    York Office conducted an investigation into the complaint. Between
    7:00 p.m. and 8:00 p.m. on July 30, 2002 and between 10:00 a.m. and
    11:00 a.m. on July 31, 2002, the agents monitored radio
    communications on the frequency 452.000 MHz and used
    direction-finding techniques to determine that the source of the
    radio transmissions was located at the Parkview House.

3.  At approximately 3:45 p.m., Mr. Howard Miller, the President of
    Statcom Communications Corporation, met with the agents and
    permitted them to inspect the radio equipment in a room on the 14th
    Floor of the Parkview House. This is the same room where Statcom
    Communications Corporation operated its UHF trunk radio system.
    During the inspection, the agents observed a radio transmitter
    labeled with the frequency 452.00 MHz and the call sign WPTM988. The
    agents used an Optoelectronics frequency counter to verify that the
    radio transmitter operated on the frequency 452.000 MHz. During the
    inspection, Mr. Miller stated that he installed the 452.000 MHz
    radio transmitter at the Parkview House for NYRS because they wanted
    to test the coverage of their 452.000 MHz radio transmitter from
    this alternate site.

4.  On September 4, 2002, the Philadelphia Office issued a Notice of
    Violation ("NOV") to NYRS for operating a radio transmitter on the
    frequency 452.000 MHz at an unauthorized location, in violation of
    Section 1.903(a) of the Rules. In the Notice of Violation, the
    Philadelphia Office stated that although NYRS was authorized to
    operate station WPTM988 on the frequency 452.000 MHz at 1633
    Broadway, New York, New York, it was operating the station on July
    30, 2002 and July 31, 2002 at the Parkview House.

5.  On September 30, 2002, Ms. Elizabeth Sachs of Lukas, Nace, Gutierrez
    & Sachs submitted a response to the NOV on behalf of NYRS. In the
    response, Ms. Sachs acknowledged the violation and stated that NYRS
    inadvertently relocated station WPTM988 prior to receiving
    conditional authority to operate the station at the Parkview House.

## DISCUSSION

6.  Section 1.903(a) of the Rules states that stations in the Wireless
    Radio Services 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 July 30, 2002 and July 31, 2002,
    NYRS operated a radio transmitter on the frequency 452.000 MHz at
    the Parkview House, 700 Victory Boulevard, Staten Island, New York.
    The license for station WPTM988 authorizes NYRS to operate a radio
    transmitter on the frequency 452.000 MHz at 1633 Broadway, New York.

7.  Based on the evidence before us, we find that NYRS willfully[^2] and
    repeatedly[^3] violated Section 1.903(a) of the Rules. *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 construction or operation at an unauthorized location 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,[^5] (the "Act"), as amended,
    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 {#iv.-ordering-clauses .unnumbered}

8.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^6] and Sections 0.111, 0.311 and 1.80 of the Rules,[^7] NYRS
    is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
    amount of four thousand dollars (\$4,000) for its operation of
    station WPTM988 at an unauthorized location.

9.  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, NYRS SHALL PAY the full amount of the proposed forfeiture
    or SHALL FILE a written statement seeking reduction or cancellation
    of the proposed forfeiture.

10. 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. 200332400005
    and FRN: 0005-1516-83.

11. The response, if any, 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. 200332400005 and FRN: 0005-1516-83.

12. 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.

13. 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.[^8]

14. 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.

15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail, Return Receipt Requested,
    to New York Radio Service, 927 McDonald Avenue, Brooklyn, New York
    11218, and to Lukas, Nace, Gutierrez & Sachs, 1111 Nineteenth
    Street, N.W., Suite 1200, Washington, D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

John E. Rahtes

District Director

Philadelphia Office

Attachment A -- FCC's List of Small Entities

[^1]: 47 C.F.R. § 1.903(a).

[^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.

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C § 503(b)(2)(D).

[^6]: 47 U.S.C § 503(b).

[^7]: 47 C.F.R. §§ 0.111 and 0.311.

[^8]: See 47 C.F.R. § 1.1914.