**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-03-NY-157

)

Parkway Luxury Ride Inc. ) NAL/Acct. No. 200432380010

Mt. Vernon, NY )

) FRN: 00101 1877 55

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: March 8, 2004**

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

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Parkway Luxury Ride Inc. ("Parkway") has apparently
    violated Section 301 of the Communications Act of 1934 as amended,
    ("Act"),[^1] by operating unlicensed radio transmitters on
    frequencies of 157.490 MHz and 155.265 MHz. We conclude that Parkway
    is apparently liable for a forfeiture in the amount of ten thousand
    dollars (\$10,000).

###### II. BACKGROUND

2.  On August 29, 2003, the FCC New York Office received a complaint
    from a FCC licensed user of interference to the frequency 155.265
    MHz.

3.  On September 3, 2003, a Commission agent using a mobile direction
    finding vehicle, monitored the frequency, 155.265 MHz, and
    positively identified the source of transmissions to Parkway,
    located at 155 Mt. Vernon Avenue, Mt. Vernon, NY 10550. There was no
    evidence of a Commission authorization for Parkway to operate this
    station on 155.265 MHz in Mt. Vernon, NY.

4.  On September 4, 2003, a Commission agent again monitored the
    frequency 155.265 MHz and positively identified the source of
    transmissions to Parkway located at 155 Mt. Vernon Avenue, Mt.
    Vernon, NY 10550. The agent advised the dispatcher on duty that
    Parkway was operating their base station and mobile units on an
    unauthorized frequency of 155.265 MHz. There was no evidence of a
    Commission authorization for Parkway to operate a base station and
    mobile units on 155.265 MHz in Mt. Vernon, NY.

5.  On September 5, 2003, Commission agents monitored the frequency
    155.265 MHz and positively identified transmissions to Parkway. The
    agents, conducted a station inspection with Parkway's owner Henry
    Mensah present, and confirmed that the base station was operating on
    a frequency of 155.265 MHz. The agents advised Mr. Mensah that a
    station license is required for station operation. There was no
    evidence of a Commission authorization for Parkway to operate a base
    station and mobile units on 155.265 MHz in Mt. Vernon, NY.

6.  On January 2, 2004, a Commission agent, using a mobile
    direction-finding vehicle, monitored the frequency, 157.490 MHz, in
    Mt. Vernon, NY in connection with an investigation concerning the
    use of unauthorized frequencies in the Private Land Mobile Radio
    Services. The agent positively identified the source of
    transmissions on 157.490 MHz to Parkway, located at 155 Mt. Vernon
    Avenue, Mt. Vernon, NY 10550. There was no evidence of a Commission
    authorization for Parkway to operate this station on 157.490 MHz in
    Mt. Vernon, NY.

7.  On January 7, 2004, Commission agents using a mobile direction
    finding vehicle, monitored the frequency, 157.490 MHz and positively
    identified the source of transmissions to Parkway, located at 155
    Mt. Vernon Avenue, Mt. Vernon, NY 10550. The agents conducted a
    station inspection with Parkway's dispatcher and observed the base
    transmitter in use. The agents advised the dispatcher that Parkway
    was operating on an unauthorized frequency of 157.490 MHz. There was
    no evidence of a Commission authorization for Parkway to operate
    this station on 157.490 MHz in Mt. Vernon, NY.

8.  On January 8, 2004, a Commission agent using a mobile direction
    finding vehicle, monitored the frequency, 157.490 MHz, in Mt.
    Vernon, NY, and positively identified the source of transmissions to
    Parkway, located at 155 Mt. Vernon Avenue, Mt. Vernon, NY 10550.
    There was no evidence of a Commission authorization for Parkway to
    operate this station on 157.490 MHz in Mt. Vernon, NY.

**III. DISCUSSION**

9.  Section 301 of the Acts sets forth generally that no person shall
    use or operate any apparatus for the transmission of energy or
    communications or signals by radio within the United States except
    under and in accordance with the Act and with a license granted
    under the provisions of the Act.

10. Based on the evidence before us, we find that Parkway operated a
    base station and mobile units on a frequency of 155.265 MHz on
    September 3, September 4, and September 5, 2003; and on a frequency
    of 157.490 MHz on January 2, January 7 and January 8, 2004, in
    willful[^2] and repeated[^3] violation of Section 301 of the Act.

11. *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 operation without an instrument of
    authorization 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,[^5] 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

12. 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 Commission's
    Rules[^7], Parkway is hereby NOTIFIED of their APPARENT LIABILITY
    FOR A FORFEITURE in the amount of ten thousand dollars (\$10,000)
    for willfully and repeatedly violating Section 301 of the Act.

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

14. 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. 200432380010
    and FRN: 00101 1877 55.

15. Any response to this NAL 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. 200432380010.

16. 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.

17. 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.[^8]

18. 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.

19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to Parkway Luxury Ride, Inc., 155 Mt. Vernon Avenue, Mt. Vernon, NY
    10550.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Daniel W. Noel
>
> District Director
>
> New York Office

Attachment A -- FCC List of Small Entities, October 2002

[^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]: 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.