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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File Number: EB-08-NY-0140
Sims Metal East, LLC )
NAL/Acct. No: 200932380001
Licensee of KNEM713 )
FRN: 0007 5612 77
Jersey City, NJ )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 3, 2008
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Sims Metal East, LLC ("Sims"), the licensee of private land
mobile station KNEM713, in Jersey City, NJ, apparently willfully and
repeatedly violated Section 1.903(a) of the Commission's Rules
("Rules") by operating a mobile relay station and mobile units on
unauthorized frequencies. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Sims is
apparently liable for a forfeiture in the amount of four thousand
2. On April 4, 2008, the New York Office received a complaint of
interference to a commission licensee on the frequency 464.925 MHz.
3. On April 10, 2008, an agent with the Commission's New York Office
checked FCC data bases and determined that Sims was licensed to
operate private land mobile station KNEM713 on the frequencies 464.925
MHz and 469.925 MHz. Later that day, the agent inspected Sims's
private land mobile station at 1 Linden Avenue, Jersey City, NJ and
determined that, in addition to its licensed operations, Sims was
operating mobile units and a mobile relay station on the unauthorized
frequencies 469.4 MHz and 464.4 MHz respectively. During the
inspection, the plant manager showed the agent the posted license for
KNEM713, which indicated that Sims is licensed to operate only on the
frequencies 464.925 MHz and 469.925 MHz. There was no evidence of a
Commission authorization for Sims to operate on 469.4 MHz or 464.4 MHz
from 1 Linden Avenue in Jersey City, NJ. The agent warned the plant
manager of the penalties for operation on unauthorized frequencies and
that Sims should cease operating on any frequencies for which it does
not have authorization. The agent also informed Sims's operations
manager on April 17, 2008, that Sims's license for station KNEM713 did
not authorize operation on frequencies 469.4 MHz and 464.4 MHz and
advised him of the penalties for operation on unauthorized
4. On April 21, 2008, the New York Office issued a Notice of Violation
("NOV") to Sims for operation on unauthorized frequencies and for not
transmitting the station call sign in violation of Section 1.903(a)
and Section 90.425(a). On May 13, 2008, Sims replied to the NOV
stating that it had retained Communications Advantage to assist in
correcting the violations.
5. On May 23, 2008, and May 27, 2008, a Commission agent monitored the
frequencies 464.4 MHz and 469.4 MHz in Jersey City, NJ, and determined
that Sims again was operating mobile units on 469.4 MHz and a mobile
relay station on 464.4 MHz at 1 Linden Avenue, Jersey City, NJ. An
agent checked FCC databases and found no evidence of a Commission
authorization for Sims to operate on 469.4 MHz or 464.4 MHz from this
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly 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) of the Act has
been interpreted to mean simply that the acts or omissions are
7. 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 and with a valid
authorization granted by the Commission. Section 1.903(b) further
provides that the "holding of an authorization does not create any
rights beyond the terms, conditions, and period specified in the
authorization." On April 10, May 23, and May 27, 2008, a Commission
agent determined that Sims was operating mobile units on the frequency
469.4 MHz and a mobile relay station on the frequency 464.4 MHz
without authorization. Because Sims continued to operate on
unauthorized frequencies after receiving verbal warnings from a
Commission agent on April 10, 2008, and April 17, 2008, and a Notice
of Violation on April 21, 2008, the violation was willful. The
violation continued for more than one day; therefore, it was repeated.
8. Based on the evidence before us, we find that Sims apparently
willfully and repeatedly violated Sections 1.903(a) and 1.903(b) of
the Rules by operating mobile units on the unauthorized frequency of
469.4 MHz. and a mobile relay station on the unauthorized frequency of
9. 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.
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. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors, we
conclude that a $4,000 forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Sims Metal East, LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Sections 1.903(a) and
1.903(b) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Sims SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures. Sims Metal East, LLC,
shall also send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
14. 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.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 1A625, 445 12th
Street, S.W., Washington, D.C. 20554.
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 Sims Metal East, LLC at its address of
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
The agent also determined on April 10, 2008, that Sims failed to transmit
the station's assigned call sign as required under Section 90.425(a), 47
C.F.R. S: 90.425(a).
47 U.S.C. S:S: 1.903(a), 90.425(a)
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S:S: 0.111, 0.311, 1.80, 1.903(a), and 1.903(b).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission