**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | File Number EB-02-MA-023      |
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| Air Paging Inc.                   | ) | NAL/Acct. No.200332600001     |
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| Licensee of Radio Station WPPB501 | * | FRN 0003-7891-04              |
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| North Miami Beach, Florida        | * |                               |
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## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released:** March 18, 2003

By the Enforcement Bureau, Miami Office:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    Air Paging Inc., licensee of Radio Station WPPB501, apparently
    liable for a forfeiture in the amount of nine thousand dollars
    (\$9,000) for willful and repeated violation of Sections 1.903(a),
    90.403(f), and 90.425(a) of the Commission\'s Rules ("Rules").[^1]
    Specifically, we find Air Paging Inc. apparently liable for failing
    to operate its Wireless Radio Station in accordance with the rules
    applicable to that service, continuously radiating an unmodulated
    carrier, and failing to identify its station by the assigned
    callsign.

**II. BACKGROUND**

2.  Air Paging Inc. is the licensee of Wireless Radio Station WPPB501.
    This license authorizes Air Paging Inc.'s operation on the frequency
    467.875 MHz, among others, in the Dade County, Florida area. Any
    station authorized on this frequency is licensed as a mobile
    station.[^2] However, any units of such a station may provide the
    operational functions of a base or fixed station on a secondary
    basis to mobile service operations, provided that the control point
    and the center of the radiating portion of the antenna of any such
    units does not exceed 8 meters.[^3]

3.  On March 25 and August 5, 2002, the Commission's Miami Resident
    Agent Office ("Miami Office") received complaints of unauthorized
    operation of station WPPB501, licensed to Air Paging Inc., on the
    frequency 467.875 MHz.

4.  On August 6, 2002, from about 12:30 P.M. to 2:30 P.M., an agent of
    the Miami Office monitored the frequency 467.875 MHz. The agent
    observed a radio signal on that frequency transmitting the call sign
    "KNNF675" in Morse code. The signal transmitted continuously, even
    when no modulation was present. Commission records showed that call
    sign KNNF675 was licensed to Air Paging Communication Corp. in
    Pembroke Pines, Florida, and authorized operation on the frequency
    929.0875 MHz at several locations in south Florida.

5.  On August 8, 2002, from about 12:30 P.M. to 1:00 P.M., and on August
    12, 2002, from about 11:13 A.M. to 12:00 P.M., agents of the Miami
    Office and Tampa Field Office again monitored the frequency 467.875
    MHz and again, on both days, observed the radio signal transmitting
    the call sign "KNNF675." The station on that frequency transmitted
    continuously, even when no modulation was present. Using direction
    finding equipment and techniques, the agents determined the source
    of the signal to be an antenna mounted on a commercial radio tower
    at 350 NW 215 Street, Miami, Florida.

6.  Still on August 12, 2002, an agent of the Miami Office interviewed
    Mr. Juan Carlos Median, President of Air Paging Communication Corp.
    Mr. Medina stated that Air Paging Inc.'s transmitter and antenna for
    the station operating on 467.875 MHz were installed at the 1000-foot
    level of the radio tower located at 350 NW 215 Street, Miami,
    Florida, and that Air Paging Inc.'s office was located at 10757 NW
    23 Street, Miami, Florida.

**III**. **DISCUSSION**

7.  Section 1.903(a) of the Rules requires stations in the Wireless
    Services be operated in accordance with the rules applicable to
    their particular service. Section 90.35(b) of the Rules lists the
    available frequencies in the Industrial/Business Pool which include
    the frequency 467.875 MHz on which Air Paging Inc. operated. Section
    90.35(c)(11) of the Rules specifies limitations on the use of that
    frequency, *inter alia*, that any unit may provide the operational
    functions of a base of fixed station on a secondary basis to mobile
    communications provided that the separation between the control
    point and the center of the radiating portion of the antenna does
    not exceed 8 meters (25 feet). Air Paging Inc.'s station operated as
    a base station at a fixed location at 350 NW 215 Street, Miami,
    Florida, with its antenna mounted at the 1000-foot level of a
    communications tower. No control point was located within the
    required 25 feet of the antenna.

8.  Section 90.403(f) of the Rules prohibits the continuous radiation of
    an unmodulated carrier. On August 6, 8 and 12, 2002, Air Paging
    Inc.'s radio station at 350 NW 215 Street, Miami, Florida, operating
    on frequency 467.875 MHz, transmitted an unmodulated carrier for
    extended periods of time.

9.  Section 90.425(a) requires each station or system to identify by the
    transmission of the assigned call sign during each transmission or
    exchange of transmissions, or once each 15 minutes during periods of
    continuous operation. On August 6, 8 and 12, 2002, Air Paging Inc.'s
    radio station at 350 NW 215 Street, Miami, Florida, operating on
    frequency 467.875 MHz, transmitted the callsign KNNF675, a callsign
    assigned to a station on a different frequency, and failed to
    transmit the assigned callsign WPPB501.

10. Based on the evidence before us, we find Air Paging Inc.
    willfully[^4] and repeatedly[^5] violated Sections 1.903(a),
    90.403(f), and 90.425(a) of the Rules by failing to operate its
    Wireless Radio Station in accordance with the rules applicable to
    that service, continuously radiating an unmodulated carrier, and
    failing to identify its station by the assigned callsign.

11. Pursuant to Section 1.80(b)(4) of the Rules,[^6] the base forfeiture
    amount is \$4,000 for operation at an unauthorized location, \$4,000
    for unauthorized emissions, and \$1,000 for failure to provide
    station identification. In assessing the monetary forfeiture amount,
    we must also take into account the statutory factors set forth in
    Section 503(b)(2)(D) of the Communications Act of 1934, as amended
    ("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.[^7] Considering
    the entire record and applying the factors listed above, this case
    warrants a \$9,000 forfeiture.

**IV. ORDERING CLAUSES**

12. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^8] and Sections 0.111, 0.311 and 1.80 of the Rules,[^9] Air
    Paging Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
    FORFEITURE in the amount of nine thousand dollars (\$9,000) for
    willful and repeated violation of Sections 1.903(a), 90.403(f), and
    90.425(a) of the Rules by failing to operate its Wireless Radio
    Station in accordance with the rules applicable to that service,
    continuously radiating an unmodulated carrier, and failing to
    identify its station by the assigned callsign.

13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NAL, Air Paging Inc.
    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. and FRN
    referenced above. Requests for payment of the full amount of this
    NAL under an installment plan should be sent to: Chief, Revenue and
    Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^10]

15. The response, if any, must be mailed to Federal Communications
    Commission, Office of the Secretary, 445 12^th^ Street SW,
    Washington DC 20554, Attn: Enforcement Bureau-Technical & Public
    Safety Division and MUST INCLUDE THE NAL/Acct. No. referenced above.

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. 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 &
    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.

18. IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent by
    regular mail and Certified Mail Return Receipt Requested to Air
    Paging Inc., 469 NE 167 Street, North Miami Beach, Florida 33162. An
    additional copy shall be sent by regular mail and Certified Mail
    Return Receipt Requested to Dave\'s Communications, Inc. & Gabriel
    Wireless, LLC, Kenneth E. Hardman, Moir & Hardman, 1015 - 18^th^
    Street, NW, Suite 800, Washington, D.C. 20036-5204.

19. IT IS FURTHER ORDERED that the Petition for Imposition of Sanctions
    filed by Dave\'s Communications, Inc. on March 12, 2002, IS GRANTED
    to the extent set forth herein and IS OTHERWISE DENIED, and that
    proceeding IS HEREBY TERMINATED.[^11]

FEDERAL COMMUNICATIONS COMMISSION

Rodolfo Pomier

###  Miami Resident Agent Office, Enforcement Bureau

Attachment

[^1]: 47 C.F.R. §§ 1.903(a), 90.403(f), and 90.425(a).

[^2]: *See* 47 C.F.R. §§ 90.35(b) and 90.35(c)(11).

[^3]: *Id.*

[^4]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under 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 4387-88
    (1991).

[^5]: The 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." 47 U.S.C. § 312(f)(2).

[^6]: 47 C.F.R. § 1.80(b)(4).

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^10]: *See* 47 C.F.R. § 1.1914.

[^11]: For purposes of the forfeiture proceeding initiated by this NAL,
    Air Paging Inc. shall be the only party to the proceeding.