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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-128
Forest Electric Corporation )
WPWD334 ) NAL/Acct. No.
Edison, NJ )
) FRN: 0007 3992 31
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 29,
By the District Director, New York Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Forest Electric Corporation (``Forest''),
apparently violated Section 1.903(a) of the Commission's Rules
(the ``Rules''),1 by operating a repeater station on the
unauthorized frequency of 473.175 MHz. We conclude that Forest
is apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000).
2. Beginning in May 2003, Commission agents monitored
discrete frequencies between 473 and 479 MHz, in connection with
an assignment to determine frequency usage on those frequencies
in the New York City area. Continuous transmissions on 473.175
MHz were observed on monitoring equipment at the New York Office.
A check of Commission's records showed that this frequency was
assigned to the Jersey City Police Department, Jersey City, NJ.
Further, the station utilizing the frequency 473.175 MHz did not
provide station identification, indicating that the transmissions
may be unauthorized.
3. On June 17, 2003, a Commission agent, using a mobile
direction finding vehicle, monitored the frequency 473.175 MHz in
Jersey City, NJ, and positively determined that transmissions
were coming from a fixed station at a construction site on 30
Hudson Street in Jersey City, NJ. The agent spoke to the project
superintendent of Turner Construction Company, concerning the
unauthorized operation on a frequency assigned to a public safety
entity, and was advised that the transmissions may be coming from
a subcontractor using their own radio equipment.
4. On June 23, 2003, Commission agents, using a mobile
direction finding vehicle, again monitored the frequency 473.175
MHz in Jersey City, NJ, and positively located the source of
transmissions to an antenna located on a trailer operated by
Forest, at a construction site on 30 Hudson Street in Jersey
City, NJ. The agents conducted a station inspection with
Forest's foreman Dan Gumble, and observed the transmitter in use,
a Vertex Standard, VXR-7000, which is rated at 50 Watts. The
agents advised Mr. Gumble that Forest was operating a repeater
station on an unauthorized frequency of 473.175 MHz. There was
no evidence of a Commission authorization for Forest to operate a
repeater station on 473.175 MHz in Jersey City, NJ.
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.'' A review
of Commission's records showed that Forest Electric Corporation
was granted authority under its license, WPWD334, to operate one
repeater station on a frequency of 463.250 MHz, and 40 mobile
units on a frequency of 468.250 MHz. Agents observed the
repeater station operating on 473.175 MHz.
6. Based on the evidence before us, we find that Forest
operated radio transmission equipment on an unauthorized
frequency of 473.173 MHz on June 17 and June 23, 2003, in
willful2 and repeated3 violation of Section 1.903(a) of the
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''),4
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,5 (``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 Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 Forest 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
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, Forest 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. 200432380003 and FRN: 0007 3992 31.
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. 200432380003.
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
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. 20554.8
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 Communications 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 Forest Electric Corporation, 160 Raritan Center
Parkway, Suite 18, Edison, NJ 08837.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
Attachment A - Condensed List of Small Entities, October 2002
1 47 C.F.R. § 1.903(a).
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).
3Section 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.
447 C.F.R. § 1.80.
47 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.