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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
WPLY756
) FRN 0008802050
Birmingham, Alabama
)
)
FORFEITURE ORDER
Adopted: August 25, 2006 Released: August 29, 2006
By the Regional Director, South Central Region, 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 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.
II. BACKGROUND
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.
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"), 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
repeated.
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.
IV. ORDERING CLAUSES
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.
FEDERAL COMMUNICATIONS COMMISSION
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,
2006).
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
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Federal Communications Commission DA 06-1717