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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-PA-280
Statcom Communications Corp. ) NAL/Acct. No. 200332400007
Staten Island, New York ) FRN 0005-1410-72
Adopted: January 24, 2005 Released:
January 26, 2005
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order'') we issue a
monetary forfeiture in the amount of twelve thousand dollars
($12,000) to Statcom Communications Corporation (``Statcom'') for
willful and repeated violation of Section 1.903(a) of the
Commission's Rules (``Rules'').1 The noted violation involves
Statcom's operation of two trunked radio systems at an
unauthorized location and operation on an unauthorized frequency,
2. On January 27, 2003, the District Director of the
Commission's Philadelphia, Pennsylvania Field Office
(``Philadelphia Office'') issued a Notice of Apparent Liability
for Forfeiture (``NAL'') to Statcom for a forfeiture in the
amount of twelve thousand dollars ($12,000).2 Statcom filed a
response on February 28, 2003.
3. On July 30 and 31, 2002, in connection with a complaint
of operation of a trunked radio system at an unauthorized
location in Staten Island, New York, agents from the Commission's
Philadelphia Office and its New York, New York Field Office
(``New York Office'') inspected the alleged unauthorized
location. The agents inspected a single trunked radio system and
observed unauthorized operation on the frequencies 477.8125 MHz,
462.450 MHz, 461.450 MHz, 478.0875 MHz, 472.5125 MHz, 461.825
MHz, 462.025 MHz, 461.775 MHz, 461.475 MHz and 462.075 MHz (``the
frequencies'') at 700 Victory Boulevard, Staten Island, New York
(``Parkview House site''). The agents determined that the radio
system was operated by Statcom.
4. Based on the agents' search of Commission records, they
determined that Statcom did not have an authorization for
operation at the Parkview House site. At the time of the
inspection, the agents found that Commission records stated that
Statcom had been issued authorizations for operation of two
trunked radio systems on Staten Island, New York at: 10
Highpoint Road,3 (``Todt Hill site'') and 631 Howard Avenue,4
(``Wagner College site''). The agents' search of Commission
records did not reveal that Statcom had authority to operate on
the frequency 462.075 MHz at any location.
5. On July 31, 2002, during the investigation, agents
interviewed Howard Miller, Statcom's President, who admitted that
Statcom had relocated the authorized operations at the Todt Hill
and Wagner College sites to the unauthorized Parkview House site
as a single trunked radio system without authorization from the
Commission. The unauthorized operation on frequency 462.075 MHz
was not addressed by Mr. Miller.
6. On August 5, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to Statcom for violating Section
1.903(a) of the Rules by operating two trunked systems at the
Parkview House site, an unauthorized location, and operating on
frequency 462.075 MHz, an unauthorized frequency. On August 19,
2002, Statcom responded to the NOV pointing out that prior to the
September 11, 2001 destruction of the World Trade Center
(``9/11''), it had a 22 channel trunked radio system located at
the World Trade Center (``WTC site''). Statcom states that its
system at the WTC site was its primary communications system, and
after losing this system as a result of 9/11, it states further
that it was forced to load its entire customer base on its system
at its Todt Hill site. When operation from that site proved to
be inadequate for the needs of Statcom's customers, it then
modified its WTC site system licenses for operation at 1 Chrysler
Building, New York, New York (``Chrysler Building site''). To
supplement the coverage provided by its modified operation, which
still appeared to be inadequate, Statcom decided to construct 4
channels for operation from the Wagner College site. The Wagner
College site, according to Statcom, proved to provide inadequate
coverage, and it stated that it combined its licensed trunked
radio systems from its other authorized locations (Todt Hill and
Wagner College) at the Parkview House site in an effort to
provide the same coverage that it had from the WTC site prior to
9/11. Statcom states that it experienced interference at the
Parkview site, and admitted that while trying to provide
interference free communications from the site, it modified its
other area licenses for operation from the Parkview site without
Commission authority. It explained further that applications had
been filed for operation from the Parkview site, and that it was
in the process of applying for special temporary authority
(``STA'') to cover operation from the site.
7. On September 10, 2002, Statcom filed a supplemental
response to the NOV informing the Philadelphia Office that its
operation on frequency 462.075 MHz was pursuant to an agreement
with Frequency Plus Corporation, a licensee authorized to use
462.075 MHz. In a September 23, 2002, letter, Frequency Plus
Corporation confirmed the agreement, but stated that the Todt
Hill site was the agreed upon location for Statcom's operation
and that it did not authorize or have knowledge of the
transmitter's relocation from its licensed site to any other
8. On January 27, 2003, the Philadelphia Office issued the
subject NAL to Statcom for operating a radio station without
Commission authorization for the location in apparent willful and
repeated violation of Section 1.903(a) of the Rules. The
Philadelphia Office noted that its inspection took place almost a
year after 9/11, which should have given Statcom a sufficient
amount of time to submit the appropriate applications for the
modified operations. Additionally, the Philadelphia Office noted
in the NAL that none of the frequencies at the Parkview House
site were ever authorized to operate from the World Trade Center,
as all of the frequencies found at the time of the inspection
were authorized for operation from the Todt Hill and Wagner
College sites,5 and that Statcom had relocated its WTC licensed
frequencies to the Chrysler Building site after 9/11. However,
this does not mitigate the subsequent rule violations set forth
in the NAL. Finally, the Philadelphia Office noted that
Statcom's operation of frequency 462.075 MHz at the Parkview
House site was inconsistent with the license for that frequency
held by Frequency Plus Corp., which only authorized operation
from the Todt Hill site. In its February 28, 2003, response,
Statcom repeated its prior admissions and set forth as mitigation
of its violation: its needs after 9/11, including monetary and
client losses; its prior modification of the licenses to enable
operation at other locations; its intent to operate with FCC
authority; its reliance on a contractor to obtain the necessary
STA and license modifications; its immediate remedial steps to
correct the situation when informed of the violation; the
inadvertent nature of the violation; the proximity of the
unauthorized operation to the authorized locations;6 and asserted
its financial inability to pay a forfeiture. It also cited
Lawrence E. Vaughn, 9 FCC Rcd 4438 (Priv. Rad. Bur. 1994)
(``Vaughn''), in support of its contention that the location at
Parkview House site was within the Commission's authorized area
of operation for its licensed coordinates
9. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,7 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)
(``Policy Statement''). In examining Statcom'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 such other matters
as justice may require.8
10. Section 1.903(a) of the Rules requires that stations in
the Wireless Radio Services must be used and operated only in
accordance with the rules applicable to their particular service
and with a valid authorization granted by the Commission.
Statcom was authorized to operate two trunked radio systems at
specific locations on Staten Island.9 At the time of inspection,
Statcom was admittedly operating from neither location. Statcom
admits that it had previously moved to another authorized
location prior to moving to the unauthorized location. Thus,
Statcom was aware of the need for the modification, but chose not
to make certain that the license modification was approved prior
to beginning its operation at Parkview House site. Based on
Statcom's admissions and the agents' observations during the
inspection, we conclude that Statcom willfully10 and repeatedly11
violated Section 1.903(a) of the Rules by combining and operating
without authorization its two trunked radio stations from an
unauthorized location (Parkview House site),12 and by operating
on an unauthorized frequency from the same location.
11. Statcom seeks mitigation for its violation because of
problems it experienced in relocating its operation, to satisfy
the demands of its customers due to the destruction of its
antenna tower on 9/11, and on the basis of its good faith effort
to comply with the Commission's Rules. We understand that
Statcom was operating from the top of one of the World Trade
Center buildings, and its operation ceased because of the
destruction of the World Trade Center buildings. However, we
find that Statcom's operation on the various frequencies from an
unauthorized location more than a year after 9/11 does not
mitigate its violation of Section 1.903 of the Rules.
12. Further, Statcom states that it made a good faith
effort to comply with the Commission's requirements prior to
relocating the frequencies. However, this statement is not
supported by any documentation that would allow us to determine
what good faith efforts, if any, were taken to ensure compliance
with our Rules prior to our investigation and inspection.13 We
therefore conclude that Statcom is not entitled to a reduction on
the basis of good faith.
13. Statcom cites inadvertence in its violation, blaming
the failure of its contractor to submit the needed paperwork for
license modification. It is well settled that as a licensee,
Statcom is responsible for both knowing the Commission's Rules
and complying with them and is responsible for its agent's
work.14 Statcom is responsible for the actions of its agent.15
Moreover, Statcom's remedial efforts to correct the violation,
after the violation was discovered by the Commission are not a
mitigating factor. See Seawest Yacht Brokers, 9 FCC Rcd 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.'' See also, Station
KGVL, Inc., 42 FCC 2d 258, 259 (1973).
14. Nor can Statcom rely upon Vaughn for its proposition
that its operation was within authorized limits, citing a 1.6 km
variance from authorized coordinates as acceptable. Vaughn is
inapposite because Vaughn concerns mitigation for error in the
initial location and construction of a tower structure. It holds
that initial tower construction greater than 1.6 km from the
authorized location coordinates is sufficient to permit filing a
Finder's Preference claim.16 Statcom's situation involves the
unauthorized relocation of its stations from the coordinates on
its licenses after its initial licenses were granted and
constructed. This is not a situation involving a good faith
initial effort on Statcom's part to construct on the coordinates
assigned to the licenses. Thus, the situations are totally
15. Statcom's request for cancellation of the forfeiture
due to financial distress was not accompanied by its tax returns
from 1999 through 2001, or any other documentation as set forth
in paragraph 14 of the NAL. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted. Accordingly, there is no
basis to cancel the assessed forfeiture amount due to inability
16. After careful review and consideration of the
circumstances, degree of culpability and the nature of the
violation, the dispositive fact is that the record evidence shows
Statcom knew that a modification of its license was required for
relocating its trunked radio system prior to the date FCC agents
first observed it transmitting at Parkview House without an
authorization. Statcom knew it had not received authorization to
move its tower location, yet, nevertheless chose to operate
without authorization for its location. We reject Statcom's
argument that its action was due to the events of 9/11 and that
it was compelled to operate as it did. Statcom's rationale is
belied by the facts that 10 months had transpired since the
events of 9/11 and that Statcom had previously modified its
license as a direct result of 9/11.
17. We have examined Statcom's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of review, we conclude
that Statcom willfully and repeated violated Section 1.903(a) of
the Rules and we find no grounds to reduce or cancel the
forfeiture amount proposed by the NAL.
IV. ORDERING CLAUSES
18. 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 Rules,17 Statcom Communications Corporation IS LIABLE FOR A
MONETARY FORFEITURE in the amount of twelve thousand dollars
($12,000) for willful violation of Section 1.903(a) of the Act.
19. 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.18
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 Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, and P.O. Box 73482, Chicago, Illinois
60673-7482. 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. 20554.19
20. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt to
Frederick J. Day, Esq., 5673 Columbia Pike, Suite 100, Falls
Church, VA 22041.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 1.903(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332400007 (Enf. Bur., Tampa Office, released January 27,
3 Statcom was authorized to operate stations WIL718 (477.8125
MHz,) WPPH856 (462.450 MHz), KNEW768 (461.450 MHz), WIL766
(478.0875 MHz and 472.5125 MHz), and WNIH640 (461.825 MHz) at the
Todt Hill site.
4 Statcom was authorized to operate station WPUD412 on 462.025
MHz, 461.775 MHz and 461.475 MHz at the Wagner College site.
5 The frequencies previously located at the WTC site prior to
9/11 were relocated to the Chrysler Building site prior to
Statcom's unauthorized operation from the Parkview House site,
and none of the modified WTC frequencies were observed at the
Parkview House site during the inspection by the Philadelphia
6 Statcom states that the locations were within 1.70 miles and
0.68 miles of the authorized Todt Hill and Wagner College sites.
7 47 U.S.C. § 503(b).
8 47 U.S.C. § 503(B)(2)(D).
9 The Todt Hill site and the Wagner College site. See notes 3
and 4, supra. Each location had specific coordinates from which
transmissions were permitted.
10 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, 4388 (1991).
11 As 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. 97th Cong. 2d Sess. 51 (1982).
See Southern California Broadcasting Company, at 4388.
12 The Commission's Rules applicable to Statcom's operation, 47
C.F.R. §§ 90.135(b) and 90.175, require frequency coordination
for modification of a license's location coordinates for a
constructed transmitter tower, prior to relocation of the tower.
In order to operate from the Parkview House site, Statcom was
required to obtain a license authorizing operation from the
coordinates for the Parkview House site.
13 Statcom states that prior to the move it contacted its
licensing representative to ``do whatever had to be done'' to
obtain Commission authorization to operate from the Parkview
House site. See ¶ 13 supra. However, Statcome has provided no
documentation of what was actually done to obtain the proper
14 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863 -
21864, ¶¶ 5-7 (2002).
16 The Finder's Preference Program expired 1997, see, In the
Matter of Amendment of Part 90 of the Commission's Rules to
Facilitate Future Development of SMR Systems in the 800 MHz Band,
12 FCC Rcd 9972 (1997).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.