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 Federal  Communications  Commission  DA  04-  2021 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Dominic  DeNaples  400  Mill  Street 
 Dunmore,  Pennsylvania  18512 
 )  ) 
 )  ) 
 ) 
 File  No.  EB-  03-  PA-  003 
 NAL/  Acct.  No.  200332400009 
 FRN  No.  0008-  27-  4771 
 FORFEITURE  ORDER 
 Adopted:  July  2,  2004  Released:  July  7,  2004 
 By  the  Chief,  Enforcement  Bureau: 
 I.  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 
 Commissions  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  Commissions  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 
 II.  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 
 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 
 DeNaples  Response  at  page  1. 
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 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 
 III.  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 
 Commissions  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  agents  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 
 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). 
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 Mr.  DeNaples  willfully  violated  Section  1.903(  a)  of  the  Commissions  Rules,  10  and  we  find  no  basis  for  rescinding  or  reducing  the  $4,000  forfeiture  for  this  violation. 
 IV.  ORDERING  CLAUSES 
 10.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  503(  b)  of  the  Act,  and  Sections  0.111,  0.311  and  1.80(  f)(  4)  of  the  Rules,  11  Dominic  DeNaples  IS  LIABLE  FOR  A  MONETARY 
 FORFEITURE  in  the  amount  of  four  thousand  dollars  ($  4,000)  for  violating  Section  1.903(  a)  of  the  Commissions  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 
 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. 
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