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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554





                                 )      File No.: EB-02-NY-124
In the Matter of                 )      
                                 )      NAL/Acct.             No. 
200232380003                     
Gateway Security Systems, Inc.     )                             
Jamaica, NY                      )      FRN 0007-1609-22


                        FORFEITURE ORDER

Adopted:  November 17,  2003                           Released:  
November 19,  2003

By the Chief, Enforcement Bureau:

                         I.   INTRODUCTION
                                        
      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.

                       II.     BACKGROUND

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 
contract.

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  

                         III.      DISCUSSION

     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, 
2002).

   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 
(1998). 

   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 
(1999).

   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 
(1966).

   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.