******************************************************** 
                      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                )
                                )
Forest Electric Corporation     )  File No. EB-03-NY-128
WPWD334                         )  NAL/Acct.            No.:  
200432380003
Edison, New Jersey              )  FRN  0007-3992-31
                                 

                      FORFEITURE ORDER

Adopted:  October 25, 2004                   Released:  
October 27, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of three thousand two 
hundred dollars ($3,200) to Forest Electric Corporation 
(``Forest'') for willful and repeated violation of Section 
1.903(a) of the Commission's Rules (``Rules'').1  The noted 
violation involves operation of a repeater station on the 
unauthorized frequency of 473.175 MHz.

     2.   On December 29, 2003, the District Director of the 
Commission's New York Field Office (``New York Office'') 
released a Notice of Apparent Liability for Forfeiture 
(``NAL'') to Forest in the amount of four thousand dollars 
($4,000).  Forest filed a response on January 29, 2004 
(``Response'').  

II.  BACKGROUND

     3.   Beginning in May 2003, Commission agents observed 
continuous transmissions on the frequency of 473.175 MHz.  
The agents noted that the station using this frequency did 
not identify by a call sign or provide any station 
identification.  A check of Commission records showed that 
this frequency was assigned to the Jersey City Police 
Department in Jersey City, New Jersey.  On June 17, 2003, a 
Commission agent, using a mobile direction-finding vehicle 
monitored the frequency 473.175 MHz in Jersey City, and 
determined that the transmissions were coming from a fixed 
station at a Turner Construction Company (``Turner'') site 
on 30 Hudson Street in Jersey City. The agent spoke to 
Turner's project superintendent concerning the unauthorized 
operation on a frequency that was assigned to a public 
safety entity, and was advised that the transmissions may be 
coming from a subcontractor using its own radio equipment. 

     4.   On June 23, 2003, Commission agents using a mobile 
direction-finding vehicle again monitored the frequency 
473.175 MHz in Jersey City, and determined that the 
transmissions were coming from an antenna located on a 
trailer operated by Forest at the construction site on 
Hudson Street.  The agents conducted a station inspection 
with Forest's foreman, and observed the transmitter in use, 
a Vertex Standard (VXR-7000), which is rated at 50 Watts.  
The agents advised the construction foreman that Forest was 
operating a repeater station on an unauthorized frequency of 
473.175 MHz.  A review of Commission records indicated that 
Forest was granted authority under its license, WPWD334, to 
operate one repeater station on a frequency of 463.250 MHz, 
and 40 mobile units on a frequency of 468.250 MHz.  Forest 
did not, however, have Commission authorization to operate a 
repeater station on 473.175 MHz.

     5.   On December 29, 2003, the District Director of the 
New York Office issued the subject NAL to Forest, finding 
that it willfully2 and repeatedly3 violated Section 1.903(a) 
of the Rules.  In its response, Forest admits that it 
violated Section 1.903(a), but requests a reduction of the 
proposed forfeiture on the grounds that:  1) it immediately 
ceased operation on the unauthorized frequency upon 
notification by Commission agents on June 23, 2003; 2) its 
site personnel did not intend to violate the Rules; and 3) 
Forest did not authorize its personnel to operate on 
frequency 473.175 MHz.


III. DISCUSSION

     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''),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 Forest'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 1.903(a) of the Rules requires that 
stations in the Wireless Radio Services be used and operated 
with a valid authorization granted by the Commission.  Two 
FCC inspections of the trailer operated by Forest at the 
construction site on Hudson Street revealed that Forest was 
operating a repeater station on an unauthorized frequency of 
473.175 MHz.  A review of Commission records indicated that 
Forest did not have Commission authorization to operate a 
repeater station on that frequency.  In its response, Forest 
does not challenge the findings of the NAL that it willfully 
and repeatedly violated Section 1.903(a) of the Rules.

     8.   Forest seeks a reduction in the amount of the 
proposed forfeiture for several reasons.  First, Forest 
asserts that it immediately ceased operation on the 
unauthorized frequency after the June 23, 2003 Commission 
inspection.  Although Forest's action is commendable, 
remedial actions taken after the Commission's inspection, 
notice or action have not been considered a mitigating 
factor warranting a reduction of the assessed forfeiture.7

     9.   Forest also asserts that its forfeiture should be 
reduced because it did not authorize its personnel to 
operate on the frequency of 473.175 MHz.  It is well-
established, however, that Forest is accountable for its 
employees' and independent contractors' acts and omissions, 
and ultimately, is responsible for compliance with the 
Commission's requirements.8  Nor do we find merit in 
Forest's request for a reduction on the grounds that its 
personnel did not intend to violate the Commission's Rules.  
The Commission has not considered an absence of intent to 
violate the rules as a mitigating factor warranting a 
forfeiture reduction.9  We do, however, find that Forest has 
a history of overall compliance and, accordingly, reduce the 
forfeiture amount from four thousand dollars ($4,000) to 
three thousand two hundred dollars ($3,200) on that basis.

IV.  ORDERING CLAUSES

     10.  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,10 Forest Electric Corporation IS 
LIABLE FOR A MONETARY FORFEITURE in the amount of three 
thousand two hundred dollars ($3,200) for willfully and 
repeatedly violating Section 1.903(a) of the Rules.

     11.  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.11 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, P.O. Box 73482, Chicago, Illinois 60673-7482.  
Payment by overnight mail may be sent to Bank One/LB 73482, 
525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.   
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. 
20554.12   

     12.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by first class mail and certified mail return 
receipt requested to Mr. Robert A. Rynar, Vice President-
Operations, Forest Electric Corporation, 160 Raritan Center 
Parkway, Suite 18, Edison, New Jersey 08837.



                         FEDERAL COMMUNICATIONS COMMISSION

                         
                         George R. Dillon
                         Assistant Chief, Enforcement Bureau
_________________________

     11.  47 C.F.R. § 1.903(a).  

     21.   Section 312(f)(1) of the Act, 47 U.S.C. 
312(f)(1), which applies to 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 ....''  See Southern California Broadcasting Co., 6 
FCC Rcd 4387 (1991).   

     31.  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. 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 n.56 (2003).

     41.  47 U.S.C. § 503(b).

     51.  47 C.F.R. § 1.80.

     61.  47 U.S.C. § 503(b)(2)(D).

     71.  See South Central Communications Corp., 18 FCC Rcd 
700, 702-03, ¶ 9 (Enf. Bur. 2003); Northeast Utilities, 17 
FCC Rcd 4115, 4117, ¶ 13 (Enf. Bur. 2002).  Eure Family 
Limited Partnership, 17 FCC Rcd 21861, 21864-65, ¶¶ 7-8 
(2002).

     81.  See, e.g., AT&T Wireless Services, Inc., 17 FCC 
Rcd 21861, 21864-75 (2002); Sonderling Broadcasting Corp., 
69 FCC 2d 289, 291 (1978).

     91.  See, e.g., 4M of Richmond, Inc., Licensee of WLEE 
4M Communications, Inc., DA 04-2515 ¶ 13 (Enf. Bur., 
released August 13, 2004).

     101.      47 C.F.R. §§  0.111, 0.311, 1.80(f)(4).

     111.      47 U.S.C. § 504(a).

     121.      See 47 C.F.R. § 1.1914.