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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 )
Adopted: June 7, 2005
Released: June 9, 2005
By the Regional Director, South Central Region, Enforcement
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.
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
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
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
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
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 by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. 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.
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.
Dennis P. Carlton
Regional Director, South
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)
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
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
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.
14See All American Telephone, Inc., 16 FCC Rcd 16601
1547 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311,
1647 U.S.C. § 504(a).
17See 47 C.F.R. § 1.1914.