**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-03-PA-003        |
|                                  | *) |                              |
| Dominic DeNaples                 | ** | NAL/Acct. No. 200332400009   |
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| 400 Mill Street                  | *  | FRN No. 0008-27-4771         |
|                                  | *) |                              |
| Dunmore, Pennsylvania 18512      | ** |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: July 2, 2004 Released: July 7, 2004**

By the Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of four thousand dollars (\$4,000) to
    Dominic DeNaples for willful violation of Section 1.903(a) of the
    Commission's Rules ("Rules").[^1] The noted violation involves Mr.
    DeNaples' operation of radio communications equipment on the
    unauthorized frequency 154.515 MHz.

2.  On March 27, 2003, the Commission's Philadelphia District Office
    ("Philadelphia Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Dominic DeNaples for a forfeiture in the
    amount of four thousand dollars (\$4,000).[^2] Mr. DeNaples filed a
    response to the *NAL* on April 22, 2003. In his response, Mr.
    DeNaples requested that the Commission rescind the forfeiture.[^3]

# BACKGROUND

3.  On January 14, 2003, in response to a complaint received by the
    Philadelphia Office alleging harmful co-channel interference caused
    by an unidentified auto parts dealer on frequency 154.515 MHz near
    Nescopeck, Pennsylvania, an agent from the Philadelphia Office used
    direction-finding techniques to locate the source of the
    transmissions at DeNaples Auto Parts at 400 Mill Street in Dunmore,
    Pennsylvania 18512. After observing and recording the transmissions
    on frequency 154.515 MHz from 2:30 p.m. until 3:15 p.m. on January
    14, 2003, the agent visited DeNaples Auto Parts to inspect the radio
    communications equipment.

4.  Dominic DeNaples, owner of DeNaples Auto Parts, acknowledged that he
    owned the radio communications equipment, and was responsible for
    its operation. When asked to produce a license to operate on
    frequency 154.515 MHz, Mr. DeNaples produced a copy of the license
    for station WNKK817. The license for WNKK817, however, only
    authorized operation of radio communications equipment on
    frequencies 452.1750 MHz and 457.1750 MHz at 400 Mill Street,
    Dunmore, Pennsylvania 18512. Mr. DeNaples, when asked, could produce
    no license authorizing operation on frequency 154.515 MHz, though he
    admitted to operating on that frequency for several years. A
    subsequent search of Commission records revealed no authorization
    for Dominic DeNaples to operate radio communications equipment on
    the frequency 154.515 MHz.

5.  On March 27, 2003, the Philadelphia Office issued an *NAL* to
    Dominic DeNaples 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.[^4] Mr.
    DeNaples responded to the *NAL* on April 22, 2003. In his response,
    Mr. DeNaples conceded that he operated on frequency 154.515 MHz, but
    argued that he applied for and was issued a license for that
    frequency more than thirty years ago.[^5]

# discussion

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"),[^6] Section 1.80 of the Rules,[^7] 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) ("*Policy
    Statement*"). In examining Dominic DeNaples' 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 such other matters as justice
    may require.[^8]

7.  Section 1.903(a) of the Rules requires that, "\[s\]tations in the
    Wireless Radio Services 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."[^9] Dominic DeNaples,
    on January 14, 2003, operated radio communications equipment on
    frequency 154.515 MHz without Commission authorization and, thus, in
    violation of Section 1.903(a) of the Rules.

8.  In his response, Mr. DeNaples claimed that he did not operate on
    frequency 154.515 MHz illegally; instead, he submits that he held
    the appropriate Commission authorization for such operation. Mr.
    DeNaples, however, provided no proof of any such authorization
    either during the agent's inspection or in his response letter. The
    only proof of any authorization to operate on the frequency 154.515
    MHz offered by Mr. DeNaples is a copy of a license he submitted with
    his response. That license, however, became effective on March 31,
    2003, well after the agent inspected Mr. DeNaples' radio
    communications equipment. Further, Commission records indicated that
    Mr. DeNaples did not have a license to operate on the frequency
    154.515 MHz prior to the inspection date, and did not file the
    license application requesting authority to operate on frequency
    154.515 MHz until January 22, 2003, more than one week after the
    inspection of his radio communications equipment. Therefore, Mr.
    DeNaples had no authority to operate on the frequency 154.515 MHz on
    January 14, 2003.

9.  We have examined Dominic DeNaples' response to the *NAL* pursuant to
    the statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that Mr.
    DeNaples willfully violated Section 1.903(a) of the Commissions
    Rules,[^10] and we find no basis for rescinding or reducing the
    \$4,000 forfeiture for this violation.

# ordering clauses

10. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^11]
    Dominic DeNaples **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of four thousand dollars (\$4,000) for violating Section
    1.903(a) of the Commission's Rules.

11. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 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 may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200332400009 and FRN
    0008-27-4771. 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
    Dominic DeNaples, 400 Mill Street, Dunmore, Pennsylvania 18512.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, File No.
    EB-03-PA-003, NAL/Acct. No. 200332400009 (Enf. Bureau, Philadelphia
    Office, released March 27, 2003).

[^3]: DeNaple's Response at page 1.

[^4]: *NAL* at ¶ 1.

[^5]: DeNaples' Response at page 1. Attached to his response, Mr.
    DeNaples sent a copy of a license for station WPXG564 authorizing
    operation on frequency 154.515 MHz with an effective date of March
    31, 2003.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 C.F.R. 1.903(a).

[^10]: 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,'
    ... means the conscious and deliberate commission or omission of
    such act, irrespective of any intent to violate any provision of
    this Act or any rule or regulation of the Commission authorized by
    this Act ...." *See* *Southern California Broadcasting Co.*, 6 FCC
    Rcd 4387, 4388 (1991) (forfeiture to an AM radio station for willful
    violation of sponsorship identification, even though the AM radio
    station did not know its actions violated any rule or law).

[^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.