Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



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


In the Matter of                  )
                                 )
Pembroke Square Associates        )       File Number EB-05-NF-001
Owner  of Two-Way  Radio System,  )      NAL/Acct. No.200532640002
Pembroke Mall                     )                 FRN 0002031011
Virginia Beach, VA                )
                                 )


                      FORFEITURE ORDER

Adopted:               June             7,              2005                                                                            
Released:  June 9, 2005

By the Regional Director,  South Central Region, Enforcement 
Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of ten thousand dollars 
($10,000) to Pembroke Square Associates (``Pembroke''), the 
owner of a two-way radio system in Pembroke Mall, Virginia 
Beach, Virginia, for willful and repeated violation of 
Section 301 of the Communications Act of 1934, as amended 
(``Act'').1  The noted violation involves Pembroke's 
operation of a radio station without a valid license or 
authorization from the Commission.

II.   BACKGROUND 

     2.   In response to a complaint, on January 12 and 13, 
2005, an FCC agent from the Norfolk Office of the 
Enforcement Bureau (``Norfolk Office'') monitored and 
visually observed employees of Pembroke Mall transmitting on 
the General Mobile Radio Service (GMRS) frequency 462.625 
MHz, using handheld two-way radio transmitters.

     3.   On January 13, 2005, the FCC agent conducted an 
inspection to determine the license status of the 
transmitters operating on the GMRS frequency in the Pembroke 
Mall.  Pembroke authorities admitted operation of the two-
way radio transmitters on 462.625 MHz.  Pembroke provided 
the agent with Private Land Mobile Radio (PLMR) station 
license KB77434 and a Notice of Cancellation that cancelled 
station license KB77434 on June 10, 2004.  Pembroke claimed 
to have received oral authorization from the Commission's 
Wireless Telecommunications Bureau staff to continue 
operation after cancellation of its license.  Station 
license KB77434, however, did not include 462.625 MHz, the 
GMRS frequency upon which the agent observed Pembroke 
operating.     

     4.   On January 14, 2005, the Commission's database 
contained no record of any authorization that permitted 
Pembroke to transmit on 462.625 MHz.  On February 2, 2005, 
Wireless Telecommunications Bureau staff confirmed that 
Pembroke had not received oral authorization to continue 
operating under station license KB77434 after its 
cancellation.2

     5.   On March 16, 2005, the Norfolk Office issued a 
Notice of Apparent Liability for Forfeiture to Pembroke in 
the amount of ten thousand dollars ($10,000) for the 
apparent willful and repeated violation of Section 301 of 
the Act.3  Pembroke filed a response to the NAL dated April 
14, 2005 requesting cancellation or reduction of the 
proposed forfeiture.           

III.        DISCUSSION

     6.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,4 
Section 1.80 of the Rules,5 and The Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the Rules 
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture 
Policy Statement'').  In examining Pembroke'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

     7.   Section 301 of the Act states that no person shall 
use or operate any apparatus for the transmission of energy 
or communications or signals by radio within the United 
States except under and in accordance with the Act and with 
a license.7  In its response to the NAL, Pembroke admits 
that it operated two-way radio transmitters on 462.625 MHz.  
It also admits that it did not have a valid license 
authorizing it to operate on 462.625 MHz on January 12 and 
13, 2005.  Thus, based on the evidence, we find that 
Pembroke willfully8 and repeatedly9 violated Section 301 of 
the Act by operating two-way radio transmitters on 462.625 
MHz without a Commission license.

     8.   Pembroke asserts that the forfeiture should be 
cancelled or reduced, because 1) the violation was minor; 2) 
Pembroke made good faith efforts to comply with the Rules; 
and 3) Pembroke has a history of compliance with the Rules.  

     9.   We disagree with Pembroke that the violation was 
minor.  Pembroke claims that it did not intend to operate 
without a license, because its station license KB77434 was 
cancelled due to Commission error.  It is irrelevant whether 
Pembroke believes its license was cancelled in error.10  
Pembroke was informed in a letter from the Wireless 
Telecommunications Bureau of the Commission dated June 10, 
2004 that its license had been cancelled.11  Pembroke was 
aware of the cancellation, because it submitted a non-timely 
petition for reconsideration of the cancellation on 
September 20, 2004. After protesting the cancellation of its 
license and after it received another letter dated September 
30, 2004 affirming the cancellation, Pembroke continued to 
operate its two-way radio system.  Thus, Pembroke had ample 
warning and notice that it was operating without a license.  
Even if Pembroke did not know that it was operating without 
a license, for a violation to be willful, the violator need 
not intend to violate the Rules; the violator need only 
consciously or deliberately act or fail to act.12  Pembroke 
clearly intended to operate its two-way radio system.  
Moreover, the license in question, KB77434, when active, did 
not authorize operation on 462.625 MHz.  Pembroke claims 
that the company it hired to install its communications 
system told it that it was authorized to operate on 462.625 
MHz.  Hiring a company to install communications needs, 
however, does not excuse the owner and operator of the radio 
equipment from complying with the Rules.  Pembroke's license 
clearly stated that it authorized the licensee to operate 
only on 461.5625 and 466.5625 MHz.  Pembroke knew or should 
have known that it could not operate on 462.625 MHz.  
Therefore, we find that this was not a ``minor'' violation, 
worthy of a reduction in the forfeiture amount.

     10.  We also disagree that Pembroke is entitled to a 
reduction based on good faith efforts to comply with the 
Rules.  As stated above, Pembroke continued to operate its 
two-way radio system after it was twice notified that its 
license was cancelled.  Although Pembroke stated it 
submitted the paperwork for a new license to a license 
application company on December 9, 2004, the application was 
not filed with the Commission until January 13, 2005, the 
day the agent contacted Pembroke.  The license, WQCE271, was 
granted on February 10, 2005, but it only authorizes 
operation on 462.250 and 467.250 MHz.  Thus, even though 
Pembroke took initial steps to obtain a new license prior to 
the agent's inspection, it did not discontinue its operation 
pending grant of the license.  In addition, the license 
granted does not authorize operation on 462.625 MHz.  
Finally, although Pembroke discontinued operation after the 
agent's inspection on January 13, 2005, licensees are 
expected to take prompt remedial action to comply with the 
Rules after being informed of a violation.13  We conclude 
that Pembroke's actions do not constitute good faith efforts 
worthy of a reduction in the forfeiture amount.  

     11.  Finally, we disagree that Pembroke is entitled to 
reduction based on history of compliance with the Rules.  
Pembroke does appear to have a history of compliance with 
the Rules as it had not received a Notice of Violation or 
Notice of Apparently Liability prior to March 16, 2005.  
However, Pembroke ignored several notices that its license, 
KB77434, was cancelled and continued to operate its two-way 
radio system.  Pembroke also operated its system before its 
current license, WQCE271, was granted.  After considering 
Pembroke's blatant disregard for the Rules, we conclude that 
a reduction of the forfeiture amount based on a history of 
compliance with the Rules is inappropriate.14 

     12.  We have examined Pembroke's response to the NAL 
pursuant to the statutory factors above, and in conjunction 
with the Forfeiture Policy Statement.  As a result of our 
review, we conclude that Pembroke willfully and repeatedly 
violated Section 301 of the Act.  We find no basis for 
cancellation or reduction of the $10,000 forfeiture proposed 
for this violation.

IV.   ORDERING CLAUSES

     13.  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(f)(4) of the 
Commission's Rules,15 Pembroke Square Associates IS LIABLE 
FOR A MONETARY FORFEITURE in the amount of ten thousand 
dollars ($10,000) for willfully and repeatedly 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.16  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/Acct. No. and FRN No. referenced above. 
Payment bycheck or money order may be mailed to Federal 
Communications Commission, P.O. Box358340,Pittsburgh, PA 
15251-8340. Payment by overnight mail may be sent toMellon 
Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, 
PA 15251. Payment by wire transfer may be made to ABA 
Number043000261, receiving bankMellon Bank, and account 
number911-6106.  Requests for full payment under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Group, 445 12th Street, S.W., Washington, D.C. 
20554.17 
     15.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Pembroke Square Associates at its 
record of address and its attorney, Barry Randolph Koch, 
Inman & Strickler PLC, 575 Lynnhaven Parkway, Suite 200, 
Virginia Beach, VA 23452-7350.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              Dennis P. Carlton
                              Regional Director, South 
                         Central Region
                              Enforcement Bureau
               
_________________________

147 U.S.C.  301.

2Pursuant to Section 1.931(b)(5) of the Commission's Rules, 
licensees of Private Wireless  Services may request special 
temporary  authority to  operate  via  the telephone  under 
special limited  circumstances, provided a  properly signed 
application is filed  within 10 days of  such oral request.  
47  C.F.R.   1.931(b)(5).   Pembroke  called the  Wireless 
Telecommunications Bureau on January  14, 2005, a day after 
the agent's inspection.  However,  the Bureau does not have 
a record of  any earlier calls from Pembroke  or any record 
that  oral   authority  to   operate  beyond   the  license 
expiration was  requested or granted.  Thus,  even based on 
Pembroke's version of events, it  did not have authority to 
operate on January 12 and 13, 2005.  Moreover, even if such 
authority was granted on January 14, 2005, Pembroke did not 
submit a written application within  10 days of the alleged 
oral request, as would have been required by the Rules.  

3Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532640002 (Enf.  Bur., Norfolk  Office, March  16, 2005) 
(``NAL'').

447 U.S.C.  503(b).

547 C.F.R.  1.80.

647 U.S.C.  503(b)(2)(D).

747 U.S.C.  301. 

8Section 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).   

9As  provided  by  47  U.S.C.    312(f)(2),  a  continuous 
violation is ``repeated'' if it continues for more than one 
day.     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  Company,  6 FCC  Rcd  4387,  4388 
(1991) and  Western Wireless Corporation, 18  FCC Rcd 10319 
at fn. 56 (2003).

10We note that license KB77434 was cancelled after Pembroke 
failed to  respond to three separate  audit letters, issued 
October 12,  2001, April 19,  2002, and February  27, 2004.  
Even if Pembroke submitted the requested information in May 
of 2002, as Pembroke alleges,  the Commission has no record 
of the submission and Pembroke was informed of this fact by 
the  February 27,  2004 audit  letter.  Pembroke  failed to 
respond to the February 27, 2004 letter, and the Commission 
canceled its license.  Thus,  the license was not cancelled 
by mistake, as Pembroke alleges.

11Notice of the cancellation was  also provided in a Public 
Notice, DA 04-1553, dated June 8, 2004. 

12See Southern California Broadcasting  Co., 6 FCC Rcd 4387 
(1991).

13See  AT&T  Wireless Services,  Inc.,  17  FCC Rcd  21861, 
21864-75 (2002);  Sonderling Broadcasting Corp., 69  FCC 2d 
289, 291  (1978); Odino  Joseph, 18  FCC Rcd  16522, 16524, 
para.  8 (Enf.  Bur.  2003);  South Central  Communications 
Corp., 18  FCC Rcd 700,  702-03, para. 9 (Enf.  Bur. 2003); 
Northeast Utilities, 17 FCC Rcd  4115, 4117, para. 13 (Enf. 
Bur. 2002).  

14See  All  American  Telephone,  Inc., 16  FCC  Rcd  16601 
(2001).

1547  U.S.C.     503(b);   47  C.F.R.     0.111,  0.311, 
1.80(f)(4).

1647 U.S.C.  504(a).

17See 47 C.F.R.  1.1914.