Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Joselyn Gordon ) File No. EB-03-NY-054
Rescue Car Services, Inc. ) NAL/Acct. No.
WPTH937 ) FRN 0005-1517-66
Brooklyn, New York )
Adopted: December 1, 2004 Released:
December 3, 2004
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand
dollars ($4,000) to Joselyn Gordon as owner of Rescue
Car Service, Inc. (``Rescue''), licensee of WPTH937,
Brooklyn, New York, for willful and repeated violation
of Section 90.403(a)(2) of the Commission's Rules
(``Rules'').1 The noted violation involves Rescue's
failure to operate radio transmitting equipment in a
permissible manner by operating on the unauthorized
frequency of 151.605 MHz.
2. On June 10, 2003, 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 $4,000 to Mr. Gordon.2 Mr. Gordon
filed a response to the NAL dated on or about July 17, 2003.
3. On April 2, 2003, an agent from the New York Office,
having received a complaint of interference to frequency 156.950
MHz, VHF Marine Channel 19, in the Maritime Service of the Safety
and Special Radio Services, used a mobile direction-finding
vehicle and traced the source of the interference on 156.950 MHz
to transmissions coming from an antenna located at Rescue's
business, 264A Troy Avenue, Brooklyn, New York. The agent
further determined that transmissions on the frequency 151.605
MHz, coming from the same Brooklyn address, generated the
spurious emissions on 156.950 MHz. A search of the Commission's
data base found that there is no authorization to operate a
station on 151.605 MHz in Brooklyn, New York.
4. On the next day, April 3, 2003, the agent again
observed a radio signal on 151.605 MHz, and identified that
Rescue operated a base transmitter on 151.605 MHz from that same
Brooklyn address. According to Commission records, however,
Rescue was licensed to operate radio station WPTH937 on base
frequency 151.490 MHz instead. At that time, the agent conducted
an inspection of the station, and advised Mr. Gordon, the owner
of Rescue, that Rescue's base station was operating on an
unauthorized frequency of 151.605 MHz.
5. On April 9, 2003, three Commission agents monitored
transmissions on 151.605 MHz and using a mobile direction-finding
vehicle, again positively observed radio transmission on 151.605
MHz from Rescue's base station in Brooklyn. The next day, April
10, 2003, two of the Commission agents interviewed the service
manager of Aries Communications, the communications company which
services Rescue's equipment. The manager told the agents that
his company loaned Rescue a base transmitter for operation on its
licensed frequency, 151.490 MHz, to replace the transmitter
operating on the unauthorized one.
6. On June 10, 2003, the New York Office issued an NAL in
the amount of $4,000 to Mr. Gordon for Rescue's apparent willful
and repeated violation of Section 90.403 (a)(2) of the Rules. In
his response, Mr. Gordon does not deny that Rescue was operating
on an unauthorized frequency on April 2 or 3, 2003 but does
challenge the Commission's finding that it was operating on an
unauthorized frequency on April 9, 2003. Mr. Gordon states that
he contacted his service company, Aires Communication, on April
3, 2003, and that Aires Communication changed Rescue's
transmitter to operate on the correct frequency. Thus, Mr.
Gordon claims, it ``is not true that on April 9, 2003 I was still
violating ... [Section] 90.403 (a)(2) of the [C]ommission's
rules.'' Mr. Gordon offers no other defense or basis for
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Policy Statement'').5 In examining Mr. Gordon's
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
other such matters as justice may require.6
8. Section 90.403(a)(2) of the Rules requires
licensees of radio stations in the private land mobile radio
services to ``exercise such direction and control as is necessary
to assure that all authorized facilities are employed only in a
permissible manner.'' The Commission agents' investigation
establishes that Rescue operated a transmitter located at 264A
Troy Avenue, Brooklyn, New York, on an unauthorized frequency
(151.605 MHz) on April 2 and 3 and again on April 9, 2003, after
its owner was informed of the unauthorized operation. Based on
the record before us, Mr. Gordon failed to exercise the direction
and control necessary to assure that Rescue's facilities were
employed only in a permissible manner. We find that Rescue
willfully7 and repeatedly8 violated Section 90.403(a) (2) of the
Rules, and Mr. Gordon as its owner is responsible for the
9. Mr. Gordon's claim that his service
company fixed the spurious emission before April 9, 2003, is not
supported by the record, and even if it were so supported, no
mitigation is warranted on the basis of Mr. Gordon's purported
correction of the violation. Remedial measures do not warrant
mitigation when they occur after Commission notification of the
violation. As the Commission stated in Seawest Yacht Brokers,
``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.''9 We conclude that neither
cancellation nor reduction of the proposed $4,000 monetary
forfeiture is therefore warranted.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,10 and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,11 Joselyn Gordon, as owner of Rescue Car Service, Inc.
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for
willful and repeated violation of Section 90.403(a)(2) of the
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 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 must include
the FCC Registration Number (FRN), and the NAL/Acct. No.
referenced in the caption. Payment by overnight mail may be sent
to Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom,
Chicago, IL 60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account number
1165259. 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. 20554.13
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 Joselyn Gordon, Rescue Car Service, Inc.,
264A Troy Avenue, Brooklyn, New York 11213.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 90.403(a)(2).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332380021 (Enf. Bur., New York Office, released June 10,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 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 (1991).
8 According to the Commission's investigators, Rescue operated on
an unauthorized frequency on April 2, 3 and 9, 2003. As
provided by 47 U.S.C. § 312(f)(2), a violation which occurs more
than once is ``repeated.'' The Conference Report for Section
312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See
H.R. Rep. 97th Cong. 2d Sess. 51 (1982). See Southern California
Broadcasting Co., supra.
9 9 FCC Rcd 6099, 6099 (1994). See also Callais Cablevision,
Inc., 17 FCC Rcd 22626, 22629 (2002); Radio Station KGVL, Inc.,
42 FCC 2d 258, 259 (1973); Executive Broadcasting Corp., 3 FCC 2d
699, 700 (1966); and AT&T Wireless Services, Inc., 17 FCC Rcd
7891 (2002), forfeiture ordered, 17 FCC Rcd 21866, 21875-76 ¶ ¶
10 47 U.S.C. § 503(b).
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.