******************************************************** 
                      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 )

   )

   Joslyn Gordon ) File No. EB-03-NY-054

   Rescue Car Service, Inc. ) NAL/Acct. No. 200332380021

   WPTH937 ) FRN 0005-1517-66

   Brooklyn, New York )

                          MEMORANDUM OPINION AND ORDER

   Adopted: January 25, 2007     Released:   January 29, 2007

   By the Assistant Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Memorandum Opinion and Order ("Order"), we deny a December 17,
       2004 Petition for Reconsideration filed by Joslyn Gordon, owner of
       Rescue Car Service, Inc. ("Rescue"), licensee of radio station
       WPTH937, Brooklyn, New York. Mr. Gordon seeks reconsideration of a
       December 3, 2004 Forfeiture Order  in which the Enforcement Bureau
       imposed a monetary forfeiture in the amount of four thousand dollars
       ($4,000) for willful and repeated violation of Section 90.403(a)(2) of
       the Commission's Rules ("Rules"). The noted violation involves
       Rescue's operation of radio transmitting equipment on an unauthorized
       frequency.

   II. BACKGROUND

    2. On April 2, 2003, an agent from the Commission's New York Field Office
       ("New York Office") monitored frequency 156.950 MHz in Brooklyn, New
       York in response to a complaint of interference to frequency 156.950
       MHz, VHF Marine Channel 19, in the Maritime Service of the Safety and
       Special Radio Services. The agent traced the source of the
       interference to transmissions coming from an antenna located at
       Rescue's business at 264A Troy Avenue, Brooklyn, New York. The agent
       further determined that the transmissions on frequency 151.605 MHz,
       coming from the same Brooklyn address, generated spurious emissions on
       156.950 MHz. A search of the Commission's data base found no
       authorization to operate a station on 151.605 MHz in Brooklyn, New
       York. The data base indicated that Rescue was licensed to operate base
       station WPTH937 on frequency 151.490 MHz.

   3. On the next day, April 3, 2003, the agent again observed a radio signal
   on 151.605 MHz, conducted an inspection of the station, and advised Mr.
   Gordon that Rescue's base station was operating on an unauthorized
   frequency of 151.605 MHz. On April 9, 2003, three Commission agents
   monitored transmissions on 151.605 MHz and once again observed radio
   transmissions on 151.605 MHz from Rescue's base station in Brooklyn.
   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."

   4. On June 10, 2003, the New York Office issued a Notice of Apparent
   Liability for Forfeiture ("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. On behalf of Rescue, Mr. Gordon filed a response to the NAL
   in which he did not deny that Rescue was operating on an unauthorized
   frequency on April 2 or 3, 2003, but challenged the Commission's finding
   that Rescue was operating on an unauthorized frequency on April 9, 2003.
   He also detailed his efforts to correct the violation. On December 3,
   2004, the Bureau rejected his arguments and issued a Forfeiture Order
   finding Rescue liable for a $4,000 forfeiture as proposed by the NAL. On
   December 17, 2004, Mr. Gordon filed a Petition for Reconsideration
   restating the same arguments he made in his response to the NAL.

   III.  DISCUSSION

   5.  The forfeiture amount in this case was assessed in accordance with
   Section 503(b) of the 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 Mr. Gordon's Petition for
   Reconsideration, 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 any other such matters
   as justice may require.

   6. In his Petition for Reconsideration, Mr. Gordon repeated his previous
   argument that upon being told by the Commission agents that he was
   operating on an unauthorized frequency, he contacted the appropriate
   technical service, which corrected the problem the same day. He concluded
   that he thought his action resolved the matter, and that Rescue was no
   longer in violation of the Commission rules. As explained in the
   Forfeiture Order, Mr. Gordon's purported remedial measures do not warrant
   mitigation when they occur after the Commission's notification of the
   violation. The Commission repeatedly has stated that corrective action
   taken to come into compliance with Commission rules or policy after
   notification of the violation is expected and does not cancel, nullify or
   mitigate the prior violation. Mr. Gordon offers no further mitigating
   evidence or arguments on behalf of Rescue.

   7. Accordingly, we affirm the Forfeiture Order's determination that Rescue
   willfully and repeatedly violated Section 90.403(a)(2) of the Rules and
   that a forfeiture of four thousand dollars ($4,000) is warranted.

   IV.  ORDERING CLAUSES

   8. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act and
   Section 1.106 of the Rules, the Petition for Reconsideration IS DENIED.

   9. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, and
   Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Mr. Joslyn Gordon, as
   owner of Rescue Car Service, Inc.,  IS LIABLE FOR A MONETARY FORFEITURE in
   the amount of four thousand dollars ($4,000) for willful and repeated
   violation of Section 90.403(a)(2) of the Rules.

   10. 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 may be made by check or similar instrument,
   payable to the order of the Federal Communications Commission. The payment
   must include the NAL/Acct. No. referenced above. Payment by check or money
   order may be mailed to Forfeiture Collection Section, Finance Branch,
   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, SW, Room 1-A625, Washington, D.C.
   20554.

   11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by first
   class mail and certified mail, return receipt requested, to Joslyn Gordon,
   Rescue Car Service, Inc., 264A Troy Avenue, Brooklyn, New York 11213.

   FEDERAL COMMUNICATIONS COMMISSION

   George R. Dillon

   Assistant Chief, Enforcement Bureau

   19 FCC Rcd 23557 (Enf. Bur. 2004).

   47 C.F.R. S 90.403(a)(2).

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

   Mr. Gordon filed another Petition for Reconsideration dated December 10,
   2004, in response to the Forfeiture Order. It was not postmarked, however,
   until March 21, 2005, and was not received at the Commission until March
   28, 2005. Documents are considered to be filed on the date of receipt at
   the location designated by the Commission. See 47 C.F.R. S 1.7. Further,
   the deadline for filing a Petition for Reconsideration was thirty days
   after public notice of the Forfeiture Order issued on December 3, 2004.
   See 47 U.S.C. S405(a), 47 C.F.R. S1.106(f). Accordingly, this document was
   filed too late to be considered. Even if it had been considered on the
   merits, however, our outcome would remain the same.

   47 U.S.C. S 503(b) and 47 C.F.R. S1.80.

   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).

   47 U.S.C. S 503(b)(2)(D).

   Petition for Reconsideration, p. 1.

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

   47 U.S.C. S 405 and 47 C.F.R. S 1.106.

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

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 07-212

   3

   Federal Communications Commission DA 07-212