**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-NY-221

Mexicana Car and Limousine Services )

WNXK978 ) NAL/Acct. No. 200332380009

Jackson Heights, NY )

) FRN: 0005-1515-01

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: January 2, 2003**

By the District Director, New York Office, Enforcement Bureau:

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Mexicana Car and Limousine Services ("Mexicana") has
    apparently violated Section 90.403(a)(2) of the Commission's Rules
    (the "Rules"[^1],[^2] by operating radio transmitting equipment on
    an unauthorized frequency of 31.70 MHz. We conclude that Mexicana is
    apparently liable for forfeiture in the amount of four thousand
    dollars (\$4,000).

###### II. BACKGROUND

2.  On September 20, 2002, a Commission agent, using a mobile direction
    finding vehicle, monitored the frequency 31.70 MHz in Jackson
    Heights, NY, to assess compliance in the Private Land Mobile Radio
    Services. The agent determined that Mexicana, located at 70-18
    35^th^ Avenue, Jackson Heights, NY 11372, operated base and mobile
    units on a frequency of 31.70 MHz. There was no evidence of a
    Commission authorization to operate this station on a frequency of
    31.70 MHz in Brooklyn, NY.

3.  On October 2, 2002, Commission agents, using a mobile direction
    finding vehicle, monitored the frequency 31.70 MHz in Jackson
    Heights, NY. The agents determined that Mexicana operated on a
    frequency of 31.70 MHz. The agents conducted a station inspection
    and determined that Mexicana's base transmitter and mobile units
    were operating on an unauthorized frequency of 31.70 MHz. The agents
    advised Francisco Carreon, owner of Mexicana, that Mexicana's base
    station and mobile units were operating on an unauthorized frequency
    of 31.70 MHz.

4.  On October 8, 2002, a Commission agent monitored the frequency 31.70
    MHz in Jackson Heights, NY and again positively identified
    transmissions to Mexicana.

5.  On October 11, 2002, the New York Office sent a Notice of Violation,
    by First Class and Certified Mail Return Receipt Requested, to
    Mexicana for operation on an unauthorized frequency of 31.70 MHz.
    The New York Office did not receive a reply to the Notice of
    Violation.

### III. DISCUSSION

6.  Section 90.403(a)(2) of the Commission's Rules requires that
    licensees in the private land mobile radio services shall be
    directly responsible for the proper operation and use of each
    transmitter for which they are licensed. In this connection,
    licensees shall exercise such direction and control as to assure
    that the transmitter is being operated in a permissible manner. A
    review of Commission's records showed that Mexicana was granted
    authority under their license, WNXK978, to operate on a frequency of
    30.68 MHz. Agents observed the base station and mobile units
    operating on a frequency of 31.70 MHz.

7.  Based on the evidence before us, we find that, Mexicana Car and
    Limousine Services operated radio transmitting equipment on an
    unauthorized frequency of 31.70 MHz on September 20, 2002, October
    2, 2002 and October 8, 2002, in willful[^3] and repeated[^4]
    violation of Section 90.403(a)(2) of the Rules.

8.  *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*"),[^5] sets the base
    forfeiture amount for using an unauthorized frequency 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, as amended,[^6] ("Act") 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

9.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^7] and Sections 0.111, 0.311 and 1.80 of the Commission's
    Rules[^8], Mexicana Car and Limousine Services is hereby NOTIFIED of
    their APPARENT LIABILITY FOR A FORFEITURE in the amount of four
    thousand dollars (\$4,000) for willfully violating Section
    90.403(a)(2) of the Commission's Rules.

10. 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, Mexicana Car and Limousine Services
    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. 200332380009
    and FRN: 0005-1515-01.

12. Any response to this NAL 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. 200332380009.

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 Receivable Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^9]

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 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.

16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested,
    to Mexicana Car and Limousine Services, 70-18 35^TH^ Avenue, Jackson
    Heights, NY 11372.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

[^1]: ^)^

[^2]: 47 C.F.R. § 90.403(a)(2).

[^3]: ^?^ 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).

[^4]: 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.

[^5]: 47 C.F.R. § 1.80.

[^6]: ^?^47 U.S.C. § 503(b)(2)(D).

[^7]: ^?^47 U.S.C. § 503(b).

[^8]: 47 C.F.R. §§ 0.111, and 0.311.

[^9]: See 47 C.F.R. § 1.1914.