**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-NY-191

)

ServisAir ) NAL/Acct. No. 200332380005

Newark, NJ )

) FRN: 0007-6931-53

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: November 13, 2002**

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

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that ServisAir has apparently violated Section 301 of the
    Communications Act of 1934 ("Act"),[^1] as amended, by operating a
    repeater station on 461.050 MHz and portable radio transmitting
    equipment on 466.050 MHz. We conclude that ServisAir is apparently
    liable for forfeiture in the amount of ten thousand dollars
    (\$10,000).

###### II. BACKGROUND

2.  On August 12, 2002, the FCC New York Office, received a complaint of
    interference affecting the frequency pair 461.050/466.050 MHz, from
    a FCC licensed user.

3.  On August 23, 2002, Commission agents, using a mobile direction
    finding vehicle, monitored the frequency pair 461.050/466.050 MHz.
    The agents determined that ServisAir located at Cargo Building 340,
    North Cargo Area, Newark International Airport, Newark, NJ 07114,
    was operating a repeater station on 461.050 MHz and portable
    transceivers on 466.050 MHz. There was no evidence of a Commission
    authorization to operate this station on frequency pair
    461.050/466.050 MHz at Newark International Airport, Newark, NJ.

4.  On August 26, 2002, Commission agents, using a mobile direction
    finding vehicle, monitored the frequency pair 461.050/466.050 MHz.
    The agents again determined that ServisAir was operating on the
    frequency pair 461.050/466.050 MHz. The agents conducted a station
    inspection and advised Jeff Winans, general manager of ServisAir,
    that the base station was operating on an unauthorized frequency
    pair of 461.050/466.050 MHz.

5.  On August 27, 2002, a Commission agent again spoke to Jeff Winans,
    general manager, and also Brian O'Dell, vice president of ServisAir,
    and informed them that ServisAir, located at Newark International
    Airport, was operating on an unauthorized frequency pair of
    461.050/466.050 MHz. The New York Office also sent a Warning Letter
    for unlicensed operation, by First Class and Certified Mail Return
    Receipt Requested, to ServisAir.

6.  On August 28, 2002, Commission agents, using a mobile direction
    finding vehicle, monitored the frequency pair 461.050/466.050 MHz.
    The agents again determined that ServisAir was operating on the
    frequency pair 461.050/466.050 MHz.

7.  On September 19, 2002, ServisAir submitted a reply to the Warning
    Letter, admitting using the wrong frequencies.

### III. DISCUSSION

8.  Section 301 of the Act 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. A review of Commission's records
    showed that there was no evidence of a Commission authorization to
    operate this station on frequency pair 461.050/466.050 MHz at Newark
    International Airport, Newark, NJ.

9.  Based on the evidence before us, we find that, ServisAir, operated a
    repeater station on 461.050 MHz and portable radio transmitting
    equipment on 466.050 MHz on August 23, 2002, August 26, 2002, and
    August 28, 2002, in willful[^2] and repeated[^3] violation of
    Section 301 of the Act.

10. *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

11. 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], ServisAir is hereby NOTIFIED of their APPARENT LIABILITY
    FOR A FORFEITURE in the amount of ten thousand dollars (\$10,000)
    for willfully violating Section 301 of the Act.

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

13. 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. 200332380005
    and FRN: 0007-6931-53.

14. 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. 200332380005.

15. 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.

16. 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]

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 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.

18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to ServisAir, 18430 Air Mail Road, Houston, TX 77032, and a copy to
    ServisAir, Cargo Building 340, North Cargo Area, Newark
    International Airport, Newark, NJ 07114.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

> New York Office

[^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.