******************************************************** 
                      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                        )         
                              ) 
Joselyn Gordon                )    File No. EB-03-NY-054 
Rescue Car Services, Inc.               )    NAL/Acct.        No. 
200332380021
WPTH937                       )    FRN 0005-1517-66
Brooklyn, New York                           )


                        FORFEITURE ORDER

Adopted:  December 1, 2004                             Released:  
December 3, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
          monetary forfeiture in the amount of four thousand 
          dollars ($4,000) to Joselyn Gordon as owner of Rescue 
          Car Service, Inc. (``Rescue''), licensee of WPTH937, 
          Brooklyn, New York, for willful and repeated violation 
          of Section 90.403(a)(2) of the Commission's Rules 
          (``Rules'').1  The noted violation involves Rescue's 
          failure to operate radio transmitting equipment in a 
          permissible manner by operating on the unauthorized 
          frequency of 151.605 MHz.

     2.   On June 10, 2003, the District Director of the 
Commission's New York, New York Field Office (``New York 
Office'') issued a Notice of Apparent Liability for Forfeiture 
(``NAL'') in the amount of $4,000 to Mr. Gordon.2  Mr. Gordon 
filed a response to the NAL dated on or about July 17, 2003.

II.       BACKGROUND

     3.   On April 2, 2003, an agent from the New York Office, 
having received a complaint of interference to frequency 156.950 
MHz, VHF Marine Channel 19, in the Maritime Service of the Safety 
and Special Radio Services, used a mobile direction-finding 
vehicle and traced the source of the interference on 156.950 MHz 
to transmissions coming from an antenna located at Rescue's 
business, 264A Troy Avenue, Brooklyn, New York.  The agent 
further determined that transmissions on the frequency 151.605 
MHz, coming from the same Brooklyn address, generated the 
spurious emissions on 156.950 MHz.  A search of the Commission's 
data base found that there is no authorization to operate a 
station on 151.605 MHz in Brooklyn, New York.

     4.   On the next day, April 3, 2003, the agent again 
observed a radio signal on 151.605 MHz, and identified that 
Rescue operated a base transmitter on 151.605 MHz from that same 
Brooklyn address.  According to Commission records, however, 
Rescue was licensed to operate radio station WPTH937 on base 
frequency 151.490 MHz instead. At that time, the agent conducted 
an inspection of the station, and advised Mr. Gordon, the owner 
of Rescue, that Rescue's base station was operating on an 
unauthorized frequency of 151.605 MHz.

     5.   On April 9, 2003, three Commission agents monitored 
transmissions on 151.605 MHz and using a mobile direction-finding 
vehicle, again positively observed radio transmission on 151.605 
MHz from Rescue's base station in Brooklyn.  The next day, April 
10, 2003, two of the Commission agents interviewed the service 
manager of Aries Communications, the communications company which 
services Rescue's equipment.  The manager told the agents that 
his company loaned Rescue a base transmitter for operation on its 
licensed frequency, 151.490 MHz, to replace the transmitter 
operating on the unauthorized one. 

     6.   On June 10, 2003, the New York Office issued an NAL in 
the amount of $4,000 to Mr. Gordon for Rescue's apparent willful 
and repeated violation of Section 90.403 (a)(2) of the Rules.  In 
his response, Mr. Gordon does not deny that Rescue was operating 
on an unauthorized frequency on April 2 or 3, 2003 but does 
challenge the Commission's finding that it was operating on an 
unauthorized frequency on April 9, 2003.  Mr. Gordon states that 
he contacted his service company, Aires Communication, on April 
3, 2003, and that Aires Communication changed Rescue's 
transmitter to operate on the correct frequency.  Thus, Mr. 
Gordon claims, it ``is not true that on April 9, 2003 I was still 
violating ... [Section] 90.403 (a)(2) of the [C]ommission's 
rules.''  Mr. Gordon offers no other defense or basis for 
mitigation.

III.      DISCUSSION

     7.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Communications 
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4 
and The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines (``Policy Statement'').5  In examining Mr. Gordon'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

               8.   Section 90.403(a)(2) of the Rules requires 
licensees of radio stations in the private land mobile radio 
services to ``exercise such direction and control as is necessary 
to assure that all authorized facilities are employed only in a 
permissible manner.''  The Commission agents' investigation 
establishes that Rescue operated a transmitter located at 264A 
Troy Avenue, Brooklyn, New York, on an unauthorized frequency 
(151.605 MHz) on April 2 and 3 and again on April 9, 2003, after 
its owner was informed of the unauthorized operation.  Based on 
the record before us, Mr. Gordon failed to exercise the direction 
and control necessary to assure that Rescue's facilities were 
employed only in a permissible manner.  We find that Rescue 
willfully7 and repeatedly8 violated Section 90.403(a) (2) of the 
Rules, and Mr. Gordon as its owner is responsible for the 
violation.

               9.          Mr. Gordon's claim that his service 
company fixed the spurious emission before April 9, 2003, is not 
supported by the record, and even if it were so supported, no 
mitigation is warranted on the basis of Mr. Gordon's purported 
correction of the violation.  Remedial measures do not warrant 
mitigation when they occur after Commission notification of the 
violation.  As the Commission stated in Seawest Yacht Brokers, 
``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.''9  We conclude that neither 
cancellation nor reduction of the proposed $4,000 monetary 
forfeiture is therefore warranted.

     IV.        ORDERING CLAUSES

     10.  ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 
503(b) of the Act,10 and Sections 0.111, 0.311 and 1.80(f)(4) of 
the Rules,11 Joselyn Gordon, as owner of Rescue Car Service, Inc. 
IS LIABLE FOR A MONETARY FORFEITURE  in the amount of $4,000 for 
willful and repeated violation of Section 90.403(a)(2) 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.12  
Payment shall be made by mailing a check or similar instrument, 
payable to the order of the ``Federal Communications 
Commission,'' to the Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  The payment must include 
the FCC Registration Number (FRN), and the NAL/Acct. No. 
referenced in the caption.  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. 20554.13

     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 Joselyn Gordon, Rescue Car Service, Inc., 
264A Troy Avenue, Brooklyn, New York  11213.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         George R. Dillon
                         Assistant Chief, Enforcement Bureau
_________________________

1 47 C.F.R. § 90.403(a)(2).

2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332380021 (Enf. Bur., New York Office, released June 10, 
2003).

3 47 U.S.C. § 503(b).

4 47 C.F.R. § 1.80.

5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

6 47 U.S.C. § 503(b)(2)(D).

7 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 (1991).

8 According to the Commission's investigators, Rescue operated on 
an unauthorized frequency on April 2, 3 and 9, 2003.   As 
provided by 47 U.S.C. § 312(f)(2), a violation which occurs more 
than once is ``repeated.''  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 Co., supra.

9 9 FCC  Rcd 6099,  6099 (1994).  See  also Callais  Cablevision, 
Inc., 17 FCC Rcd 22626,  22629 (2002); Radio Station KGVL,  Inc., 
42 FCC 2d 258, 259 (1973); Executive Broadcasting Corp., 3 FCC 2d 
699, 700 (1966);  and AT&T  Wireless Services, Inc.,  17 FCC  Rcd 
7891 (2002), forfeiture ordered, 17  FCC Rcd 21866, 21875-76 ¶  ¶ 
26-28 (2002).         

10 47 U.S.C. § 503(b).

11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

12 47 U.S.C. § 504(a).

13 See 47 C.F.R. § 1.1914.