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Federal Communications Commission
Washington, D.C. 20554
) File No.: EB-02-NY-124
In the Matter of )
) NAL/Acct. No.
Gateway Security Systems, Inc. )
Jamaica, NY ) FRN 0007-1609-22
Adopted: November 17, 2003 Released:
November 19, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand
dollars ($5,000) to Gateway Security Systems, Inc.
(``Gateway'') for willful violation of Section 301 of
the Communications Act of 1934, as amended
(``Act'').1 The violation involves Gateway's
operation of a repeater station on 464.0375 MHz and
portable radio transmitting equipment on 469.0375 MHz
without a license.
2. On August 19, 2002, the District Director of the
Commission's New York, New York, Field Office (``New York
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of ten thousand dollars ($10,000) to
Gateway for the noted violation. 2 Gateway filed a response on
September 18, 2002.
3. On May 23, 2002, the New York Office received a
complaint alleging interference to the frequency pair
464.0375/469.0375 MHz. On May 24, 2002, Commission agents from
the New York Office, using direction finding techniques,
identified the source of the interference as Gateway Security
Systems, Inc., at Terminal #4, JFK International Airport,
Jamaica, New York (``JFK''). Through their monitoring, the
agents determined that Gateway was operating a repeater station
on 464.0375 MHz and portable transceivers on 469.0375 MHz
without authorization from the Commission. On May 28, 2002, the
New York Office contacted Gateway by telephone, informed it of
the interference complaint and of the unlicensed operation and
directed it to cease transmissions. On May 30, 2002, the New
York Office issued a Warning Letter to Gateway formally
notifying it that the unlicensed operation violated Section 301
of the Act. Although the letter provided an opportunity for a
response, Gateway did not respond. On August 19, 2002, the New
York Office issued a NAL in the amount of $10,000 to Gateway for
the unlicensed radio operation.
4. In its response to the NAL, Gateway asserted that in
August, 2001, it assumed a contract with the Port Authority of
New York (``Port Authority'') to provide security services at
JFK, and was required under the contract to use radio equipment
owned by the Port Authority. According to Gateway, the contract
required immediate action and nothing in the contract alerted
Gateway that it was incumbent upon Gateway to secure a license
in its own name for operation at JFK. In view of that, Gateway
claimed, it began operation immediately upon being awarded the
5. Gateway further stated in its response that upon
notification by FCC personnel nine months later, on May 28,
2002, it ceased operation, began an inquiry and found that
Spectraguard Company, Gateway's predecessor, was the authorized
licensee. Gateway contacted a frequency coordinator on May 29,
2002, and on the same day applied for a proper license on a new
frequency. Gateway correctly noted that filing the application
gave it conditional authority to begin operation. The
application was granted and Gateway became the licensee of WPVR
278 on August 5, 2002.
6. Additionally, Gateway explained that it did not respond
to the Warning Letter because it did not receive the letter
until June 15, and that the Commission had already contacted
Gateway on June 9, at which time Gateway informed the Commission
that the transmissions had ceased May 28.
7. Gateway submitted that it immediately ceased operation
upon being informally contacted by the FCC, took action to
become properly licensed, and did not operate again until a
proper application was filed with the FCC. Gateway did not
realize that neither its company name, nor that of the Port
Authority, appeared on the license; and posited that it was an
inadvertent ministerial error that led to the unlicensed
operation. It stated that it has no history of rule violations,
and that it reasonably believed that its operations were
authorized under a license held by the Port Authority.
8. Gateway contended that in view of its corrective action,
a forfeiture is not warranted. Gateway cited instances in which
the Commission issued verbal or written warnings, and issued a
monetary forfeiture only after operation continued in spite of
those warnings.3 Gateway further contended that if a forfeiture
is warranted, it should be reduced, citing cases in which the
Commission issued forfeitures in lesser amounts for unlicensed
operation, or reduced forfeitures issued to licensees based on
the short period of unlicensed operation.4
10. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,5 Section
1.80 of the Rules,6 and The Commission's Forfeiture Policy
Statement and Amendments of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'').7 In examining Gateway's response to the NAL,
Section 503(b) of the Act requires the Commission to 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
11. Section 301 of the Act requires a license for radio
operation such as that conducted by Gateway. Section
312(f)(1) of the Act9 provides that ``the term
`willful', when used with reference to the commission or
omission of any act, means the conscious or 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....'' This definition
applies to the term ``willful'' as used in Section
503(b) of the Act. See Southern Broadcasting Co., 6 FCC
Rcd 4387 (1991). Gateway's unlicensed radio operation
began in August, 2001, and continued for nine months,
until May 28, 2002, when it was contacted by the New
York Office. Gateway knew it was operating on the
relevant channels. Gateway's radio operation was,
therefore, clearly willful. Moreover, Gateway's action
to become properly licensed was remedial and occurred
only after notice from the Commission. As the Commission
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
(1994), ``corrective action taken to come into
compliance with Commission rules or policy is expected,
and does not nullify or mitigate any prior forfeitures
or violations.''10 Finally, Gateway, having become
licensed only after the notification from the
Commission, has no history of compliance as a licensee
that it can cite in its favor.
12. In regard to Gateway's contention that a warning should have
been sufficient in this matter, and that the forfeiture should be
cancelled, we disagree. Neither the Commission nor its agents
are obligated to provide a licensee an opportunity to cure a
violation prior to issuing a NAL.11 To the extent that Gateway
argued in the alternative that a lesser sanction is warranted,
and cited cases in which the forfeiture amounts were smaller,
each of those cases is also distinguishable from the instant
case. 12 Nevertheless, we agree that, analogous to the cases
cited, a reduction is in order from the $10,000 base amount. Upon
receiving the security contract from the Port Authority,
Gateway's use of radio communications was ancillary to its
security responsibilities at the airport. Gateway's predecessor
in interest under the Port Authority contract had a license that
was not transferred to Gateway when the Port Authority hired it.
Furthermore, much of the operation by Gateway occurred during the
period after the attack on the World Trade Center, during which
every U.S. airport operated under heightened security. In that
regard, Gateway focused on its responsibilities under its
contract and not upon the ministerial details of the licensing
arrangement for radio equipment handed over to it by the Port
Authority. Gateway's unlicensed operation was not analogous to
the intentional unlicensed operation of a ``pirate'' station
operator who operates its station in flagrant violation of
Commission rules. In view of these circumstances, we determine
that reduction of the $10,000 base forfeiture amount to five
thousand dollars ($5,000) is warranted.13
IV. ORDERING CLAUSES
13. 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 Commission's Rules (``Rules''),14 Gateway IS LIABLE FOR A
MONETARY FORFEITURE in the amount of $5,000 for willfully
violating Section 301 of the Act.
14. 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.15
Payment shall 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 note NAL/Acct. No. 200232380003 and FRN
0007-1609-22. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.16
15. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to counsel for Gateway, Garret R. Hargrave,
Esquire, 1331 H Street, N.W., Suite 500, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232380003 (Enf. Bur., New York Office, released August 19,
3 See, In the Matter of Joseph Frank Ptak, 13 FCC Rcd 22168
(1998); In re Jerry Szoka, CIB Docket No. 98-48, FCC 98D-3
4 See, WWC Licensee LLC, 16 FCC Rcd. 19490 (Enf. Bur. 2001)
(``WWC'') ($5,000 forfeiture for unlicensed operation reduced to
$4,000); Falcon Radio, Inc., 16 FCC Rcd. 14830 (Enf. Bur. 2001)
(``Falcon'') ($5,000 forfeiture for unlicensed operation of
business radio system); Page-Comm, 16 FCC Rcd. 6842 (Enf. Bur.
2001) (``Page-Comm'') ($5,000 forfeiture for unlicensed
operation of a paging system later reduced to $3,000); US
Unwired, Inc., 15 FCC Rcd 20295 (Enf. Bur. 2000) (``US
Unwired'') ($5,000 forfeiture for operating a paging system
without a license); Commercial Radio Service Corp, 16 FCC Rcd.
3543 (Enf. Bur., Tech. & Pub. Safety Div. 2001) (``Commercial'')
(forfeiture amount was $6,000 for operating eleven 800 MHz
stations without a license); Verizon Florida, Inc., 16 FCC Rcd.
2590 (Enf. Bur., Tech. & Pub. Safety Div. 2001) (``Verizon
Florida'') and Verizon Southwest, Inc., 16 FCC Rcd 2247 (Enf.
Bur., Tech. & Pub. Safety Div. 2001) (``Verizon Southwest'')
(forfeitures for unlicensed operation were $5,000 each).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 312(f)(1).
10 See also, Callais Cablevision, Inc., 17 FCC Rcd 22626,
22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
11 See, AT&T Wireless Services Inc, 17 FCC Rcd 21866, 21871
n. 20 (2002 (enforcing a forfeiture issued without a Notice of
Violation). See also Missouri RSA, 18 FCC Rcd 12653 (Enf. Bur.
2003) (``[n]othing in the Communications Act or the Commission's
rules entitles a licensee to an opportunity to correct a
violation prior to the issuance of a NAL. Licensees cannot
expect simply to sit back and await Commission findings of
violations before taking appropriate steps to ensure compliance
with Commission rules.''). Neither 47 U.S.C. § 503(b) nor 47
C.F.R. §§ 1.80 and 1.89 require the Commission to issue a Notice
of Violation prior to the issuance of a NAL.
12 While the proposed forfeiture was indeed smaller in each
case cited by Gateway ($6,000 in Commercial, and $5,000 in US
Unwired, Verizon Florida, Verizon Southwest and Page-Comm), in
all cited instances the recipient of the forfeiture had held a
valid license but continued operating after expiration and before
filing a renewal application. Moreover, WWC had an application
on file and mistakenly believed that it allowed conditional
operating authority prior to grant; and Falcon had filed a
request for Special Temporary Authority, unaware of the fact that
the licensed had been cancelled a year prior to its filing.
Gateway, however, never had a license and had nothing on file
with the Commission. Therefore, the facts of this case are not
comparable and reduction of the proposed forfeiture is not
warranted in this matter.
13 See, WWC at 19492.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.