####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-PA-301

Tekk Comm Communications )

Waterford, New Jersey ) NAL/Acct. No. 200332400001

)

) FRN 0004-4496-41

)

## 

## [FORFEITURE ORDER]{.underline}

**Adopted: January 12, 2004 Released: January 14, 2004**

By the 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 Tekk Comm Communications, LP ("Tekk"), licensee of station WPPT607,
for willful and repeated violation of Section 1.903(a) of the
Commission's Rules.[^1] The noted violation involves Tekk Comm's
operation of station WPPT607 from an unauthorized location.

2\. On October 22, 2002, the District Director of the Commission\'s
Philadelphia, Pennsylvania Field Office (\"Philadelphia Office\") issued
a *Notice of Apparent Liability for Forfeiture* (\"*NAL*\")[^2] in the
amount of four thousand dollars (\$4,000) to Tekk. Tekk filed a response
on November 18, 2002.

**II.** **BACKGROUND**

3.  On July 16, 2002, while conducting an audit of the Private Land
    Mobile Radio Services in the 450 -- 470 MHz band, a Commission agent
    from the Philadelphia Office detected transmissions on frequency
    464.375 MHz in the Williamstown, New Jersey area. A check of
    Commission databases indicated that the Commission had not
    authorized that frequency for use in Williamstown, New Jersey.

4\. On August 15, 2002, another Commission agent from the Philadelphia
Office used direction-finding techniques to determine that radio
transmitting equipment was being operated at 1277 Sykes Lane,
Williamstown, New Jersey on frequency 464.375 MHz. The agent monitored a
short, pulse-type signal of less than one second duration being
transmitted approximately every ten seconds. The agent also determined
that Tekk had installed a transmitter at 1277 Sykes Lane, Williamstown,
New Jersey to provide additional radio communications capabilities on
frequency 464.375 MHz. At the time, Tekk was authorized to operate
station WPPT607 on frequency 464.375 MHz at RD5, Centerton, New Jersey.

5\. On August 28, 2002, the agent monitored radio transmissions on
frequency 464.375 MHz. Using direction-finding techniques, the agent
determined that radio transmitting equipment was being operated at 1277
Sykes Lane, Williamstown, New Jersey on frequency 464.375 MHz. When he
arrived at that location, the agent encountered Gary Bendy, President of
Tekk. Mr. Bendy confirmed that Tekk was operating a transmitter on
frequency 464.375 at 1277 Sykes Lane, Williamstown, New Jersey.

6\. On October 22, 2002, the District Director of the Philadelphia
Office issued a *NAL* to Tekk for willfully and repeatedly violating
Section 1.903(a) of the Rules. On November 18, 2002, Tekk responded to
the *NAL*. In its response, Tekk states that it moved station WPPT607
from its properly licensed site to Williamstown, New Jersey, as a test
of its possible permanent relocation to enhance coverage. Tekk states
that, immediately after speaking to the Commission agent, it applied to
Industrial Telecommunications Association ("ITA") for a frequency and
received a file number from the FCC within a couple of days. Tekk
further states that its violation was not willful and that it has a
history of compliance with the Commission's rules. Therefore, Tekk seeks
reduction of the forfeiture.

### III. DISCUSSION

III. 7\. The proposed forfeiture amount in this case is being 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*, 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd
     303 (1999) ("*Forfeiture Policy Statement*"). In examining Tekk'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.[^5]

     8\. Section 1.903(a) of the Rules provides 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. On August
     15, 2002 and August 28, 2002, Tekk operated a transmitter on its
     authorized frequency 464.375 MHz from an unauthorized location.

     9\. We have examined Tekk's response to the *NAL* pursuant to the
     statutory factors above, and in conjunction with the *Policy
     Statement*. As a result of our review, we conclude that Tekk
     willfully[^6] and repeatedly[^7] violated Section 1.903(a) of the
     Rules. Although Tekk claims that the violations were not willful,
     its deliberate act of moving station WPPT607 to an unauthorized
     site, even for test purposes, was a conscious and deliberate
     commission of an act which violated Section 1.903(a) of the Rules.
     Thus, its violation was willful. Tekk further claims to have taken
     corrective measures immediately after the violation. However, we
     note that remedial actions taken to correct the violation, while
     commendable, are not mitigating factors.[^8] Finally Tekk claims
     that this is a first violation, and thus, that it has a prior
     history of overall compliance with the Commission's rules. We
     believe that reduction of the proposed monetary forfeiture to
     \$3,200 for Tekk's history of overall compliance is warranted.

**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,[^9] Tekk
Comm Communications **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.[^10] 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
should note NAL/Acct. No. 200332400001, and FRN 0004-4496-41. Requests
for full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.[^11]

12\. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be
sent by Certified Mail Return Receipt Requested and by First Class Mail
to Tekk Comm Communications, 6 Maiese Ave., Waterford, New Jersey 08322.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 C.F.R. § 1.903.

[^2]: ^?^ *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332400001 (Enf. Bur., Philadelphia Office, released October 22,
    2002.

[^3]: ^?^ 47 U.S.C. § 503(b).

[^4]: ^?^ 47 C.F.R. § 1.80.

[^5]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^6]: ^?^ 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',
    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
    4387-88 (1991).

[^7]: ^?^ 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. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn 56 (2003).

[^8]: ^?^ *See, e.g., AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866,
    21871 (2002); *Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994);
    *Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^9]: ^?^ 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^10]: ^?^ 47 U.S.C. § 504(a).

[^11]: ^?^ *See* 47 C.F.R. § 1.1914.