**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-03-NY-064

Esperanza Gonzales d.b.a. Ivette Car Service )

KNNR573 ) NAL/Acct. No. 200432380001

Brooklyn, NY )

) FRN: 0008 9882 06

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

########  Released: December 24, 2003

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

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Esperanza Gonzales d.b.a. Ivette Car Service ("Ivette"),
    apparently violated Section 1.903(a) of the Commission's Rules (the
    "Rules"[^1],[^2] by operating a base station transmitter on an
    unauthorized frequency of 151.635 MHz, and mobile units on an
    unauthorized frequency of 155.635 MHz. We conclude that Ivette is
    apparently liable for a forfeiture in the amount of four thousand
    dollars (\$4,000).

###### II. BACKGROUND

2.  On May 16, 2003, a Commission agent, using a mobile direction
    finding vehicle, monitored the frequency 151.635 MHz in Brooklyn,
    NY, to follow-up a previous investigation concerning operation on
    unauthorized frequencies in the Private Land Mobile Radio Services.
    The agent determined that Ivette, located at 2958 Fulton Street,
    Brooklyn, NY 11207, operated a base transmitter on a frequency of
    151.635 MHz. There was no evidence of a Commission authorization for
    Ivette to operate a base station on 151.635 MHz in Brooklyn, NY.

3.  On May 19, 2003, Commission agents, using a mobile direction finding
    vehicle, monitored the frequency 151.635 MHz, and again determined
    that Ivette, located at 2958 Fulton Street, Brooklyn, NY 11207,
    operated a base station on a frequency of 151.635 MHz. The agents
    conducted a station inspection with Ivette's manager, Odilio
    Bautist, and advised him that Ivette was operating a base
    transmitter on an unauthorized frequency of 151.635 MHz, and mobile
    units on an unauthorized frequency of 155.635 MHz. There was no
    evidence of a Commission authorization for Ivette to operate mobile
    units on 155.635 MHz in Brooklyn, NY.

4.  On May 20, 2003, a Commission agent, using a mobile direction
    finding vehicle, monitored the frequencies 151.635 and 155.635 MHz,
    and again determined that Ivette operated a base transmitter on a
    frequency of 151.635 MHz and mobile units on a frequency of 155.635
    MHz.

**III. DISCUSSION**

III. 

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5.  Section 1.903(a) of the Rules requires that "Stations 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." In this connection,
    licensees shall exercise such direction and control as to assure
    that the transmitter is being operated in a permissible manner. A
    review of Commission's records showed that Esperanza Gonzales d.b.a.
    Ivette Car Service was granted authority under its license, KNNR573,
    to operate one base station and 25 mobile units on a frequency of
    151.775 MHz. Agents observed the base station operating on 151.635
    MHz and mobile units operating on 155.635 MHz.

6.  Based on the evidence before us, we find that Ivette operated a base
    station on the unauthorized frequency of 151.635 MHz on May 16,
    May19, and May 20 2003, and mobile units on the unauthorized
    frequency of 155.635 MHz on May19, and May 20, 2003, in willful[^3]
    and repeated[^4] violation of Section 1.903(a) of the Rules.

7.  *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*"),[^5] sets the base
    forfeiture amount for using an unauthorized frequency at \$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, as amended,[^6] ("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. 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)
    monetary forfeiture is warranted.

**IV. ORDERING CLAUSES**

8.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^7] and Sections 0.111, 0.311 and 1.80 of the Rules,[^8] Ivette
    is hereby NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in
    the amount of four thousand dollars (\$4,000) for willfully and
    repeatedly violating Section 1.903(a) of the Rules.

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

10. 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. 200432380001
    and FRN: 0008 9882 06.

11. 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. 200432380001.

12. 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.

13. 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.[^9]

14. 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 Act. If you have
    questions regarding any of the information contained in Attachment
    A, please contact OCBO at (202) 418-0990.

15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to Esperanza Gonzales d.b.a. Ivette Car Service, 2958 Fulton Street,
    Brooklyn, NY 11207.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

> New York Office

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

[^1]: ^)^

[^2]: 47 C.F.R. § 1.903(a).

[^3]: 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).

[^4]: 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.

[^5]: 47 C.F.R. § 1.80.

[^6]: ^?^47 U.S.C. § 503(b)(2)(D).

[^7]: 47 U.S.C. § 503(b).

[^8]: 47 C.F.R. §§ 0.111, and 0.311.

[^9]: See 47 C.F.R. § 1.1914.