Click here for Adobe Acrobat version
Click here for Microsoft Word version


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                 )    File Number EB-02-PA-280
Statcom Communications Corp.     )    NAL/Acct. No. 200332400007
Staten Island, New York          )    FRN 0005-1410-72

                        FORFEITURE ORDER

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, 
462.075 MHz.

     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 
to pay.

     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.


     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. 


                         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).
15 Id.
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.