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*[^1] 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").[^2] The noted violation involves Rescue's operation of
    radio transmitting equipment on an unauthorized frequency.

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II. **BACKGROUND**

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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"*)[^3] 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[^4] 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,[^5] and *The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines*.[^6] 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.[^7]

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.[^8] 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.[^9] 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,[^10] 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,[^11] 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.[^12] 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.[^13]

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

[^1]: 19 FCC Rcd 23557 (Enf. Bur. 2004).

[^2]: 47 C.F.R. § 90.403(a)(2).

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200332380021 (Enf. Bur., New York Office, released June 10, 2003).

[^4]: 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. § 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. §405(a), 47 C.F.R. §1.106(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.

[^5]: 47 U.S.C. § 503(b) and 47 C.F.R. §1.80.

[^6]: *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).

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: Petition for Reconsideration, p. 1.

[^9]: *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 ¶ ¶ 26-28 (2002); and *Callais Cablevision,
    Inc.,* 17 FCC Rcd 22626, 22629 (2002).

[^10]: 47 U.S.C. § 405 and 47 C.F.R. § 1.106.

[^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.