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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File Number EB-05-TP-144
)
Brasfield & Gorrie, NAL/Acct. No. 200632700002
LLC )
Birmingham, AL )
FRN 0008802050
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 27 2006
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Brasfield & Gorrie, LLC ("Brasfield & Gorrie"), licensee of
stations WPQG374 and WPLY756, apparently willfully and repeatedly
violated Sections 1.903(a) and 90.425(a) of the Commission's Rules
("Rules") by failing to operate their station in accordance with their
station authorizations and failing to identify their station
transmissions. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Brasfield &
Gorrie is apparently liable for a forfeiture in the amount of five
thousand dollars ($5,000).
II. BACKGROUND
2. In response to a complaint of interference to the portable radio units
of licensee[12][Author ID2: at Sun Feb 26 22:37:00 2006 ] [13][Author
ID2: at Sun Feb 26 22:37:00 2006 ]WNPL945[14][Author ID2: at Sun Feb
26 22:37:00 2006 ]Halifax Medical Center, a licensee in the Public
Safety Pool[15][Author ID2: at Sun Feb 26 22:37:00 2006 ], the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
opened an investigation. The complainant stated that the interfering
traffic often discussed the movement [16][Author ID2: at Sun Feb 26
22:38:00 2006 ]operation [17][Author ID2: at Sun Feb 26 22:38:00 2006
]of construction [18][Author ID2: at Sun Feb 26 22:38:00 2006 ]cranes
and contained harsh [19][Author ID2: at Sun Feb 26 22:38:00 2006
]profanity. On the morning of August 13, 2005, an agent from the Tampa
Office observed the interference on 465.550 MHz to the complainant's
radio equipment in Daytona, Florida. The agent monitored a group of
radio operators on 465.550 MHz from his mobile direction finding
vehicle for over an hour and a half. The radio operators discussed
operation of construction [20][Author ID2: at Sun Feb 26 22:38:00 2006
]cranes [21][Author ID2: at Sun Feb 26 22:39:00 2006 ]and
us[22][Author ID2: at Sun Feb 26 22:39:00 2006 ]ed[23][Author ID2: at
Sun Feb 26 22:39:00 2006 ] profanity[24][Author ID2: at Sun Feb 26
22:39:00 2006 ]. The radio operators did not transmit station
identification. Using radio direction finding techniques, the agent
determined that the source of the transmissions on 465.550 MHz was
emanating from a construction site in downtown Orlando, Florida.
3. On the morning of August 15, 2005, the agent returned to the Orlando
construction site and monitored 465.550 MHz for over thirty minutes.
The agent verified with direction finding equipment that the signal on
465.550 MHz was emanating from the site. The radio operators gave
commands over the air that correlated with the movements of the
construction cranes. None of the radio operators identified their
station transmissions. The agent contacted the complainant and
positively confirmed over the phone that the interference exactly
matched the radio transmissions observed at 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 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, the company that sold and programmed the radios
informed the agent that Brasfield & Gorrie held two nation-wide
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.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. 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. Brasfield & Gorrie
[25][Author ID2: at Sun Feb 26 22:42:00 2006 ]is licensed in the
Industrial Radio Pool [26][Author ID2: at Sun Feb 26 22:43:00 2006
]and is not eligible to operat[27][Author ID2: at Sun Feb 26 22:43:00
2006 ]e[28][Author ID2: at Sun Feb 26 22:46:00 2006 ] on public safety
frequencies. [29][Author ID2: at Sun Feb 26 22:43:00 2006 ]On August
13 and 15, 2005, an agent from the Tampa Office determined that
Brasfield & Gorrie operated a land mobile station on 465.550 MHz, a
frequency not authorized by their licenses, WPQG374 and WPLY756. In
addition[30][Author ID2: at Sun Feb 26 22:48:00 2006 ], the frequency
465.550 MHz is authorized only to licensees in the [31][Author ID2: at
Sun Feb 26 22:46:00 2006 ]P[32][Author ID2: at Sun Feb 26 22:56:00
2006 ]ublic [33][Author ID2: at Sun Feb 26 22:46:00 2006 ]S[34][Author
ID2: at Sun Feb 26 22:56:00 2006 ]afety pool.[35][Author ID2: at Sun
Feb 26 22:46:00 2006 ][Author ID2: at Sun Feb 26 22:47:00 2006 ]
[36][Author ID2: at Sun Feb 26 22:46:00 2006 ]Brasfield & Gorrie's
radio supplier also admitted that the radios were originally
programmed to 465.550 MHz.
7. 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 15 minutes. The
agent never heard any of Brasfield & Gorrie's radio users identify the
call sign in use.
8. Based on the evidence before us, we find that Brasfield & Gorrie
apparently willfully and repeatedly violated Sections 1.903(a) and
90.425(a) of the Rules by failing to operate their station in
accordance with their station authorizations (operating on an
unauthorized frequency) and failing to identify their station.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for using an unauthorized frequency is $4,000
and failing to provide station identification is $1,000. In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Brasfield & Gorrie is apparently liable for a
five thousand dollar ($5,000) forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Brasfield & Gorrie, LLC is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of five thousand dollars ($5,000) for violations of Sections
1.903(a) and 90.425(a) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Brasfield & Gorrie, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
2203 N. Lois Avenue, Suite 1215, Tampa, FL 33607 and must include the
NAL/Acct. No. referenced in the caption.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Brasfield & Gorrie, LLC at its address
of record [[37][Author ID2: at Sun Feb 26 22:52:00 2006 ]2748 Mary
Taylor Rd, Birmingham, AL 35210[38][Author ID2: at Sun Feb 26 22:52:00
2006 ], [39][Author ID2: at Sun Feb 26 22:52:00 2006 ]200 Colonial
Center Parkway Suite 200[40][Author ID2: at Sun Feb 26 22:52:00 2006
], [41][Author ID2: at Sun Feb 26 22:52:00 2006 ]Lake Mary, FL
32746[42][Author ID2: at Sun Feb 26 22:52:00 2006 ].][43][Author ID2:
at Sun Feb 26 22:52:00 2006 ]
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office, South Central Region
Enforcement Bureau
47 C.F.R. SS 1.903(a), 90.425(a).
47 U.S.C. S 503(b).
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).
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."
[44][Author ID2: at Sun Feb 26 22:47:00 2006 ] [45][Author ID2: at Sun
Feb 26 22:47:00 2006 ]See[46][Author ID2: at Sun Feb 26 22:47:00 2006 ] 47
C.F.R. S 90.20(c).[47][Author ID2: at Sun Feb 26 22:47:00 2006 ]
See Acapulco Car Service, Inc., Forfeiture Order, 19 FCC Rcd 272 (Enf.
Bur. 2004).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
47 C.F.R. SS 1.903(a), 90.425(a).
47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission