Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

Caprice Car Service II ) File No.: EB-04-NY-018

WPDF849 )

) NAL/Acct. No. 200432380014

Flushing, New York )

) FRN: 0005558697

## FORFEITURE ORDER

**Adopted: December 23, 2004 Released: December 28, 2004**

By the Assistant Chief, Enforcement Bureau:

I.  **INTRODUCTION**

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1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of four thousand dollars (\$4,000) to
    Caprice Car Service II ("Caprice") for willful and repeated
    violation of Section 1.903(a) of the Commission's Rules
    ("Rules").[^1] The noted violations involve Caprice's operation of
    mobile units on an unauthorized frequency.

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II. **BACKGROUND**

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2.  On or about January 29, 2004, the New York Office received an
    interference complaint from a licensed user in the Wireless Radio
    Service. The complainant identified Caprice, located in Flushing,
    New York, as the entity responsible for the interference.

3.  On February 4, 2004, a Commission agent conducted an inspection of
    Caprice in Flushing, New York and determined that Caprice operated a
    licensed base station on frequency 154.490 MHz. The agent also
    determined that Caprice operated mobile units on frequency 159.950
    MHz. A search of the Commission's databases found no evidence of a
    Commission authorization for Caprice to operate mobile units on
    159.950 MHz in Flushing, New York. The agent advised the Caprice
    dispatcher that the mobile units were operating on an unauthorized
    frequency.

4.  On February 5, 2004, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 159.950 MHz in
    Flushing, New York and again determined that Caprice was operating
    mobile units on the unauthorized frequency of 159.950 MHz. The
    agents advised Caprice's owner, Hernan Cardenas, that the mobile
    units were operating on an unauthorized frequency.

5.  On June 14, 2004, the District Director of the New York Office
    issued a NAL, finding that Caprice willfully[^2] and repeatedly[^3]
    violated Section 1.903(a) of the Rules by operating its mobile unit
    on an unauthorized frequency.[^4] In its response, Caprice
    apologizes for using the wrong frequency and claims that "the copy
    of the license we had was not clear and we gave the technician the
    wrong information." Caprice seeks a reduction in the forfeiture
    amount based on the fact that, immediately upon learning that its
    mobile units were operating on an unauthorized frequency, it applied
    for authorization to operate on a different frequency. In a separate
    note attached to its response, Caprice also states that it cannot
    afford to pay \$4,000 and requests that the Commission consider
    reducing the forfeiture amount on that basis as well.

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III. DISCUSSION

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6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^5] Section 1.80 of the Rules[^6], and The
    Commission\'s Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
    Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
    Policy Statement\'\'). In examining Caprice's response, Section
    503(b) of the Act requires that the Commission take into account 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.

7.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Services be used and operated with a valid authorization
    granted by the Commission. On two occasions, FCC agents determined
    that Caprice was operating mobile units on the frequency 159.950
    MHz. A review of Commission records showed that Caprice did not have
    Commission authorization to operate mobile units on that frequency
    in Flushing, New York.

8.  Caprice does not challenge the findings in the NAL that it willfully
    and repeatedly violated Section 1.903(a) of the Rules. Rather,
    Caprice seeks a reduction based on the fact that it immediately
    applied for a license to operate on a new frequency immediately
    after it was notified by the FCC that its mobile units were
    operating on an unauthorized frequency. Although Caprice\'s action
    is commendable, the Commission has repeatedly stated that remedial
    measures taken to correct a violation are expected and, as such, are
    not mitigating factors warranting reduction of a forfeiture.[^7]

9.  Similarly, we decline to reduce the forfeiture amount based on
    Caprice's alleged inability to pay because Caprice's claim is not
    accompanied by tax returns or other documentation. As stated in the
    NAL, 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.[^8] Any claim of inability to
    pay must specifically identify the basis for the claim by reference
    to the financial documentation submitted.[^9] Accordingly, we find
    that there is no basis to reduce the assessed forfeiture amount due
    to inability to pay.

    10\. We have examined Caprice's response to the NAL pursuant to the
    statutory factors above as well as in conjunction with the Policy
    Statement. As a result of our review, we conclude that a four
    thousand dollar (\$4,000) forfeiture is warranted.

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IV. **ORDERING CLAUSES**

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10. **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Act[^10] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Rules,[^11] Caprice Car Service II **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of \$4,000 for willfully and repeatedly
    violating Section 1.903(a) of the Rules.

11. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within thirty (30) days of the release
    of this *Order*. If the forfeiture is not paid within the period
    specified, the case may be referred to the Department of Justice for
    collection pursuant to Section 504(a) of the Act.[^12] 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, 8th Floor Mailroom, Chicago,
    IL 60661. Payment by wire transfer may be made to ABA Number
    071000013, receiving bank Bank One, and account number 1165259. The
    payment should note NAL/Acct. No. 200432360003, and FRN 0010680940.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^13]

12. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Caprice Car Service II, 135-16 37^th^ Avenue, Flushing, New York
    11354.

**FEDERAL COMMUNICATIONS COMMISSION**

George R. Dillon

Assistant Chief, Enforcement Bureau

[^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]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The Conference
    Report for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. See H.R. Rep. 97th Cong. 2d Sess. 51 (1982). See *Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991); See
    also *Western Wireless Corporation*, 18 FCC Rcd 10319 n.56 (2003).

[^4]: See *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200432380014 (Enf. Bur., New York Office, released June 14, 2004).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: See, e.g., *AT & T Wireless Services, Inc.*, 17 FCC Rcd 21866,
    21871 (2002).

[^8]: *NAL* at para. 12.

[^9]: *See Policy Statement,* 12 FCC Rcd at 17106-17107; *See also
    Webnet Communications, Inc.*, 18 FCC Rcd 6870, 6878 (2003)(finding
    that the Commission's rules require that any request to reduce or
    cancel a forfeiture based on a claim of inability to pay must
    include detailed and relevant financial documentation).

[^10]: 47 U.S.C. § 503(b).

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.