**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number EB-04-NY-030        |
|                                  |   |                                 |
| Dave Mitchell                    | ) | NAL/Acct. No. 200432380015      |
|                                  |   |                                 |
| WPEH807                          | ) | FRN \# 0006524631               |
|                                  |   |                                 |
| Bronx, NY                        | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: June 28, 2004

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

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Dave Mitchell ("Mitchell"), licensee of station WPEH807,
    for a business operating as Community Car Service Corp.
    ("Community"), apparently violated Section 1.903(a) of the
    Commission's Rules (the "Rules"[^1], by operating a base station
    transmitter and mobile units on an unauthorized frequency of 151.790
    MHz. [^2] We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (\"Act\"),[^3] that Mitchell
    is apparently liable for a forfeiture in the amount of four thousand
    dollars (\$4,000).

#  BACKGROUND

2.  On February 13, 2004, a Commission agent, using a mobile direction
    finding vehicle, monitored the frequency 151.790 MHz in Bronx, NY,
    to follow-up a previous investigation concerning operation on
    unauthorized frequencies in the Private Land Mobile Radio Services.
    The agent determined that Mitchell, located at 3429 Eastchester
    Road, Bronx, NY 10469, operated a base transmitter and mobile units
    on an unauthorized frequency of 151.790 MHz. A search of the FCC
    database confirmed that neither Mitchell nor Community has a FCC
    license to operate a base station and mobile units on 151.790 MHz in
    Bronx,**.**

3.  On February 17, 2004 the New York Office sent a Warning Letter,
    First Class Mail and Certified Mail Return Receipt Requested, to
    Community for unlicensed operation on the frequency 151.790 MHz. On
    February 25, 2004, the New York Office received a reply to the
    Warning Letter in which Community acknowledged the unauthorized
    operation on 151.790 MHz.

4.  On March 1, 2004, Commission agents, conducted a follow-up
    inspection, and determined that Mitchell operated a base transmitter
    and mobile units on a frequency of 151.790 MHz. There was no
    evidence of a Commission authorization for Mitchell or Community to
    operate radio transmitters on 151.790 MHz in Bronx, NY.

#  DISCUSSION

5.  Section 503(b) of the Act provides that any person who willfully
    fails to comply substantially with the terms and conditions of any
    license, or willfully fails to comply with any of the provisions of
    the Act or of any rule, regulation or order issued by the Commission
    thereunder, shall be liable for a forfeiture penalty. The term
    \"willful\" as used in Section 503(b) has been interpreted to mean
    simply that the acts or omissions are committed knowingly.[^4] The
    term "repeated" means the commission or omission of such act more
    than one or for more than one day.[^5]

6.  Section 1.903(a) of the Rules provides 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."[^6] Pursuant to this
    rule, licensees must exercise such direction and control as to
    assure that the transmitter is being operated in a permissible
    manner. A review of Commission records showed that Mitchell was
    granted authority under its license for station WPEH807 to operate
    one base station and 50 mobile units on a frequency of 151.805 MHz
    at 3429 Eastchester Road, Bronx, NY 10469. Agents observed the base
    station and mobile units at 3429 Eastchester Road, Bronx, NY 10469
    operating on 151.790 MHz.

7.  Based on the evidence before us, we find that Mitchell
    willfully/repeated violated Section 1.903(a) of the Rules by
    operating a base station and mobile units on an unauthorized
    frequency of 151.790 MHz on February 13, 2004 and March 1, 2004.

8.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* (\"*Forfeiture Policy Statement*\"), and Section 1.80 of
    the Rules, the base forfeiture amount for using an unauthorized
    frequency is \$4,000.[^7] 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 Act, which include the nature,
    circumstances, extent, and gravity of the violations, and with
    respect to the violator, the degree of culpability, and history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^8] Applying the *Forfeiture Policy Statement*, Section
    1.80, and the statutory factors, a \$4,000 forfeiture is warranted.

#  ORDERING CLAUSES

9.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Dave
    Mitchell **IS** hereby **NOTIFIED** of his **APPARENT LIABILITY FOR
    A FORFEITURE** in the amount of four thousand dollars (\$4,000) for
    violations of Section 1.903(a) of the Rules.[^9]

10. **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 for Forfeiture, Dave Mitchell **SHALL PAY** the
    full amount of the proposed forfeiture or **SHALL FILE** a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

11. 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) and the NAL/Acct. No. referenced in the caption.

12. The response, if any, must be mailed to Federal Communications
    Commission, New York Office, 201 Varick Street, New York, NY 20018,
    and must include the NAL/Acct. No. referenced in the caption.

13. 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.

14. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture 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. 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 Federal
    Communications Commission, Enforcement Bureau, Spectrum Enforcement
    Division, 445 12^th^ Street, S.W., Washington, D.C. 20554. 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.

16. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Mr. Dave Mitchell, 3429
    Eastchester Road, Bronx, NY 10469.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Enclosure: FCC List of Small Entities

[^1]: ^)^

[^2]: 47 C.F.R. § 1.903(a).

[^3]: 47 U.S.C. § 503(b).

[^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 or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]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."

[^6]: 47 C.F.R. § 1.903(a).

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a).

[^10]: ^8^*See* 47 C.F.R. § 1.1914.