**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-03-PA-003

Dominic DeNaples )

WNKK817 ) NAL/Acct. No. 200332400009

Dunmore, Pennsylvania )

) FRN: 0008-27-4771

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: March 27, 2003

By the District Director, Philadelphia Office, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Dominic DeNaples has apparently violated Sections 1.903(a)
    of the Commission\'s Rules (the "Rules")[^1] by transmitting on an
    unauthorized frequency. This section requires that a licensee
    operate its station in compliance with the terms of the station
    authorization. We conclude that Dominic DeNaples is apparently
    liable for a forfeiture in the amount of four thousand dollars
    (\$4,000).

**II.** **BACKGROUND**

2.  On March 19, 2002, a licensee, filed a complaint with the
    Enforcement Bureau's Philadelphia Office alleging that an
    unidentified auto parts dealer was causing harmful co-channel
    interference to his radio communications on the frequency 154.515
    MHz. While investigating the complaint on January 14, 2003, an FCC
    Agent with the Philadelphia Office monitored radio communications on
    the frequency 154.515 MHz from persons who were apparently involved
    in the distribution of auto parts.

3.  On January 14, 2003 between 2:30 p.m. and 3:15 p.m., the agent used
    direction-finding techniques to positively determine that the source
    of the radio transmissions on the frequency 154.515 MHz was located
    at DeNaples Auto Parts, 400 Mill Street, Dunmore,
    Pennsylvania 18512. During an inspection of the company's radio
    communications equipment, the agent determined that DeNaples Auto
    Parts operated a base station and mobile radios on the frequency
    154.515 MHz.

4.  Mr. Dominic DeNaples, the owner of the DeNaples Auto Parts,
    acknowledged that he is the owner of the radio communications
    equipment and responsible for its operation. He provided the FCC
    agent with a copy of the license for station WNKK817 as evidence
    that he was authorized to operate the radio communication equipment.
    However, the license for station WNKK817 only authorized Mr.
    DeNaples to operate radio communications equipment on the
    frequencies 452.1750 MHz and 457.1750 MHz at 400 Mill Street,
    Dunmore, Pennsylvania. The Commission has no record that the Dominic
    DeNaples was authorized to operate any radio communications
    equipment on the frequency 154.515 MHz.

**III**. **DISCUSSION**

5.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Service 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 January 14, 2003, Dominic DeNaples
    operated radio communications equipment on the unauthorized
    frequency 154.515 MHz, in violation of Section 1.903(a) of the
    Rules.

6.  Based on the evidence before us, we find that Dominic DeNaples
    willfully[^2] violated Sections 1.903(a) of the Rules. The
    *Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporated the Forfeiture Guidelines*, 12 FCC
    Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
    ("*Forfeiture Policy Statement*"),[^3] sets the base forfeiture for
    operating on an unauthorized frequency at four thousand dollars
    (\$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,[^4] (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) forfeiture is warranted.

**IV. ORDERING CLAUSES**

7.  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 Rules[^6],
    Dominic DeNaples is hereby NOTIFIED of its APPARENT LIABILITY FOR A
    FORFEITURE in the amount of four thousand dollars (\$4,000) for
    operating radio communications equipment on an unauthorized
    frequency, in violation of Section 1.903(a) of the Rules.

8.  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, Dominic DeNaples SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

9.  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 must include the FCC Registration Number
    (FRN) 0008-27-4771, and should note the NAL/Acct. No. 200332400009.

10. 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. 200332400009 and FRN: 0008-27-4771.

11. 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.

12. 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]

13. 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.

14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to Dominic DeNaples, 400 Mill Street, Dunmore, Pennsylvania 18512.

FEDERAL COMMUNICATIONS COMMISSION

John E. Rahtes

> District Director
>
> Philadelphia Office

Attachment A: Condensed 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]: 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.