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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                        )                               
     Brasfield & Gorrie, LLC                 )     File Number EB-05-TP-144  
     Licensee of Stations WPQG374 and        )   NAL/Acct. No. 200632700002  
                                             )               FRN 0008802050  
     Birmingham, Alabama                                                     

                                FORFEITURE ORDER

   Adopted: August 25, 2006   Released: August 29,  2006

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


    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of four thousand dollars ($4,000) to Brasfield & Gorrie,
       LLC ("Brasfield & Gorrie"), licensee of Wireless Radio Service
       stations WPQG374 and WPLY756, for willful and repeated violations of
       Sections 1.903(a) and 90.425(a) of the Commission's Rules ("Rules").
       The noted violations involve Brasfield & Gorrie's failure to operate
       its stations in accordance with its station authorizations and failure
       to identify its stations' transmissions.


    2. On August 13, 2005, in response to a complaint of interference to
       public safety radio communications, an agent of the Commission's Tampa
       Office of the Enforcement Bureau ("Tampa Office") observed the
       interference on the complainant's authorized radio frequency of
       465.550 MHz in Daytona, Florida. The agent monitored a series of voice
       communications on 465.550 MHz from a mobile direction finding vehicle
       for over ninety minutes. The communications consisted of discussions
       of the operation of construction cranes. This type of communications
       matched the description of the interference given by the complainant.
       No station identification was transmitted during the time the agent
       monitored. Using radio direction finding techniques, the agent
       determined that the source of the transmissions on 465.550 MHz
       emanated from a construction site in downtown Orlando, Florida.

    3. On August 15, 2005, the agent returned to the Orlando construction
       site and monitored the frequency 465.550 MHz for over thirty minutes.
       No station identification was transmitted during the time the agent
       monitored. The agent verified with direction finding techniques that
       the transmissions on 465.550 MHz emanated from the site. The agent
       contacted the complainant and positively confirmed over the phone that
       the interference coincided precisely with the radio transmissions
       observed emanating from the construction site in Orlando. The agent
       then interviewed the managers of Brasfield & Gorrie located at the
       construction site. The agent played a tape recording of the
       interference, and the managers stated that they recognized the voices
       of the individuals as members of their construction crew. The agent
       requested a copy of Brasfield & Gorrie's license to operate its radio
       system but they were unable to provide one at that time. The managers
       stated that they would utilize a different radio channel.

    4. On August 16, 2005, a representative of the company that sold and
       programmed the radios used by Brasfield & Gorrie at the Orlando
       construction site informed the agent that Brasfield & Gorrie held two
       nationwide licenses, WPLY756 and WPQG374. That company informed the
       agent that it had programmed Brasfield & Gorrie's radios on 465.550
       MHz. Brasfield & Gorrie's licenses do not authorize operations on
       465.550 MHz.

    5. On February 27, 2006, the Tampa Office issued a Notice of Apparent
       Liability for Forfeiture ("NAL") in the amount of $5,000 to Brasfield
       & Gorrie. Brasfield & Gorrie filed a response to the NAL  dated March
       23, 2006.


    6. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       ("Act"), Section 1.80 of the Rules, and The Commission's Forfeiture
       Policy Statement and Amendment of Section 1.80 of the Rules to
       Incorporate the Forfeiture Guidelines. In examining Brasfield &
       Gorrie'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.

    7. 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. At the time of the observed
       unauthorized operations in August 2005, Brasfield & Gorrie held two
       Wireless Radio Service licenses granted by the Commission with
       callsigns WPLY756 and WPQG374. These two licenses authorized Brasfield
       & Gorrie to operate mobile radio units in an area encompassing most of
       the continental United States, including Orlando, Florida. The two
       licenses authorized operation on four frequencies assigned to the
       Industrial/Business Radio Pool. On August 13 and 15, 2005, Brasfield &
       Gorrie operated radio transmitters on the frequency 465.550 MHz, a
       frequency not authorized by its licenses. The frequency 465.550 MHz is
       authorized for use only by licensees in the Public Safety Radio Pool.
       In its response, Brasfield & Gorrie requests cancellation of the
       forfeiture imposed for this violation. Brasfield & Gorrie states that,
       upon notification of the violation by the Commission agent, it
       immediately contacted the third party contractor who "took immediate
       corrective action and fully cooperated" with the agents. Brasfield &
       Gorrie's response, which included a statement from the third party
       contractor, states that the unauthorized frequency was mistakenly
       programmed into its radios by the third party contractor who supplies
       and programs its radios. The mistake resulted in the erroneous entry
       of one digit of the programmed frequency, namely "465.550" instead of
       the authorized "464.550." Brasfield & Gorrie argues that the violation
       was not `willful' because it resulted from "an inadvertent programming
       error rather than ... committed consciously or deliberately." It also
       argues the violation should not be characterized as `repeated' since
       it took "swift corrective action (within a day of notice)."

    8. We disagree. For a violation to be considered `willful,' it is not the
       violation that needs be "committed consciously or deliberately" but
       rather the act itself. There is no dispute that Brasfield & Gorrie,
       through its employees, consciously and deliberately operated radio
       transmitting equipment at the construction site in Orlando, Florida.
       In so doing, its intent to use an unauthorized frequency is
       unnecessary to a finding of `willful.' Additionally, the action by a
       third party contractor in installing the unauthorized frequency which
       resulted in the violation does not excuse the licensee from forfeiture
       liability. While Brasfield & Gorrie's prompt response to investigate
       and correct the violation is commendable, it is also expected.
       "[C]orrective action taken to come into compliance with Commission
       rules or policy is expected, and does not nullify or mitigate any
       prior forfeitures or violations." Neither does Brasfield & Gorrie's
       prompt response to remedy the violation mitigate a finding of
       "repeated" as it is undisputed that the transmissions on the
       unauthorized frequency occurred multiple times on more than one day.
       Therefore, we find that Brasfield & Gorrie failed to comply with
       Section 1.903(a) of the Rules and that this violation was willful and

    9. Section 90.425(a) of the Rules requires each station to identify in
       English or International Morse Code its assigned call sign during each
       transmission or exchange of transmissions, or once each 15 minutes. On
       August 13 and 15, 2005, an agent from the Tampa Office monitored
       Brasfield & Gorrie's radio transmissions for more than ninety minutes
       and thirty minutes, respectively. The agent never heard any of
       Brasfield & Gorrie's radio users identify by its assigned call signs.
       Therefore, Brasfield & Gorrie failed to comply with Section 90.425(a)
       of the Rules. In its response, Brasfield & Gorrie does not deny the
       violation but requests cancellation or reduction of the forfeiture for
       this violation because it was unaware of the requirement. It is
       undisputed that Brasfield & Gorrie consciously and deliberately made
       multiple radio transmissions on more than one day. It is also
       undisputed that Brasfield & Gorrie failed to identify those
       transmissions with its assigned call signs. The Commission has long
       held that unfamiliarity with the statutory or regulatory requirements
       does not mitigate a forfeiture. Therefore, this violation was willful
       and repeated.

   10. After considering Brasfield and Gorrie's past history of compliance,
       we conclude that a reduction of the forfeiture amount from $5,000 to
       $4,000 is appropriate.

   11. We have examined Brasfield & Gorrie's response to the NAL pursuant to
       the statutory factors above, and in conjunction with the Forfeiture
       Policy Statement. We conclude that Brasfield & Gorrie willfully and
       repeatedly violated Sections 1.903(a) and 90.425(a) of the Rules. We
       find no basis for cancellation of the forfeiture, but do find that
       reduction of the forfeiture amount from $5,000 to $4,000 based on
       Brasfield & Gorrie's history of compliance is appropriate.


   12. 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, Brasfield & Gorrie, LLC IS LIABLE FOR A MONETARY FORFEITURE in
       the amount of $4,000 for violation of Sections 1.903(a) and 90.425(a)
       of the Rules.

   13. 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. 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: Associate Managing Director, Financial Operations,
       445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.

   14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Brasfield &
       Gorrie, LLC at its address of record.


   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 C.F.R. SS 1.903(a), 90.425(a).

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632700002
   (Enf. Bur., South Central Region, Tampa Office, released February 27,

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

   47 C.F.R. S 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

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

   47 C.F.R. S 1.903(a).

   See 47 C.F.R. S 90.35.

   See 47 C.F.R. S 90.20.

   Section 312(f)(1) of the Act, 47 U.S.C. S 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', when used with reference to the
   commission or omission of any act, 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).

   See, e.g., In the Matter of Acapulco Car Service, Inc., 19 FCC Rcd 272,
   273 (Enf. Bur. 2004); Eure Family Limited Partnership, 17 FCC Rcd 21861,
   21863-64 (2002) (finding that licensees are responsible for the acts and
   omissions of their employees and independent contractors).

   Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 at P 7 (1994).

   Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[t]he term 'repeated', when used with reference to the
   commission or omission of any act, means the commission or omission of
   such act more than once or, if such commission or omission is continuous,
   for more than one day."

   47 C.F.R. S 90.425(a).

   See, e.g., Kenneth Paul Harris, Sr., 15 FCC Rcd 12933, 12935 P 7 (Enf.
   Bur. 2000) (denying a mitigation claim of a broadcast licensee, stating
   that its ignorance of the law did not excuse the unauthorized transfer of
   the station); Maxwell Broadcasting Group, Inc., 8 FCC Rcd 784, 784 P 2
   (MMB 1993) (denying a mitigation claim of a noncommercial broadcast
   licensee, stating that the excuse of "inadverten[ce], due to inexperience
   and ignorance of the rules . . . are not reasons to mitigate a forfeiture"
   for violation of the advertisement restrictions).

   See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 P 14 (Enf. Bur.
   2003); South Central Communications Corp., 18 FCC Rcd 700, 703 P 9 (Enf.
   Bur. 2003).

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

   47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   47 C.F.R. SS 1.903(a), 90.425(a).

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

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 06-1717



   Federal Communications Commission DA 06-1717