**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-08-NY-0140      |
|                                 |   |                                 |
| Sims Metal East, LLC            | ) | NAL/Acct. No: 200932380001      |
|                                 |   |                                 |
| Licensee of KNEM713             | ) | FRN: 0007 5612 77               |
|                                 |   |                                 |
| Jersey City, NJ                 | ) |                                 |
|                                 |   |                                 |
|                                 | ) |                                 |
|                                 |   |                                 |
|                                 | ) |                                 |
|                                 |   |                                 |
|                                 | ) |                                 |
|                                 |   |                                 |
|                                 | ) |                                 |
+---------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

Released: October 3, 2008

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Sims Metal East, LLC ("Sims"), the licensee of private
    land mobile station KNEM713, in Jersey City, NJ, apparently
    willfully and repeatedly violated Section 1.903(a) of the
    Commission\'s Rules (\"Rules\")[^1] by operating a mobile relay
    station and mobile units on unauthorized frequencies. We conclude,
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended (\"Act\"),[^2] that Sims is apparently liable for a
    forfeiture in the amount of four thousand dollars (\$4,000).

# BACKGROUND

2.  On April 4, 2008, the New York Office received a complaint of
    interference to a commission licensee on the frequency 464.925 MHz.

3.  On April 10, 2008, an agent with the Commission's New York Office
    checked FCC data bases and determined that Sims was licensed to
    operate private land mobile station KNEM713 on the frequencies
    464.925 MHz and 469.925 MHz. Later that day, the agent inspected
    Sims's private land mobile station at 1 Linden Avenue, Jersey City,
    NJ and determined that, in addition to its licensed operations, Sims
    was operating mobile units and a mobile relay station on the
    unauthorized frequencies 469.4 MHz and 464.4 MHz respectively.[^3]
    During the inspection, the plant manager showed the agent the posted
    license for KNEM713, which indicated that Sims is licensed to
    operate only on the frequencies 464.925 MHz and 469.925 MHz. There
    was no evidence of a Commission authorization for Sims to operate on
    469.4 MHz or 464.4 MHz from 1 Linden Avenue in Jersey City, NJ. The
    agent warned the plant manager of the penalties for operation on
    unauthorized frequencies and that Sims should cease operating on any
    frequencies for which it does not have authorization. The agent also
    informed Sims's operations manager on April 17, 2008, that Sims's
    license for station KNEM713 did not authorize operation on
    frequencies 469.4 MHz and 464.4 MHz and advised him of the penalties
    for operation on unauthorized frequencies.

4.  On April 21, 2008, the New York Office issued a Notice of Violation
    ("NOV") to Sims for operation on unauthorized frequencies and for
    not transmitting the station call sign in violation of Section
    1.903(a) and Section 90.425(a).[^4] On May 13, 2008, Sims replied to
    the NOV stating that it had retained Communications Advantage to
    assist in correcting the violations.

5.  On May 23, 2008, and May 27, 2008, a Commission agent monitored the
    frequencies 464.4 MHz and 469.4 MHz in Jersey City, NJ, and
    determined that Sims again was operating mobile units on 469.4 MHz
    and a mobile relay station on 464.4 MHz at 1 Linden Avenue, Jersey
    City, NJ. An agent checked FCC databases and found no evidence of a
    Commission authorization for Sims to operate on 469.4 MHz or 464.4
    MHz from this location.

# DISCUSSION

6.  Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully or repeatedly fails to
    comply with any of the provisions of the Act or of any rule,
    regulation or order issued by the Commission thereunder, shall be
    liable for a forfeiture penalty. The term \"willful\" as used in
    Section 503(b) of the Act has been interpreted to mean simply that
    the acts or omissions are committed knowingly.[^5]

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. Section 1.903(b) further
    provides that the "holding of an authorization does not create any
    rights beyond the terms, conditions, and period specified in the
    authorization." On April 10, May 23, and May 27, 2008, a Commission
    agent determined that Sims was operating mobile units on the
    frequency 469.4 MHz and a mobile relay station on the frequency
    464.4 MHz without authorization. Because Sims continued to operate
    on unauthorized frequencies after receiving verbal warnings from a
    Commission agent on April 10, 2008, and April 17, 2008, and a Notice
    of Violation on April 21, 2008, the violation was willful. The
    violation continued for more than one day; therefore, it was
    repeated.

8.  Based on the evidence before us, we find that Sims apparently
    willfully and repeatedly violated Sections 1.903(a) and 1.903(b) of
    the Rules by operating mobile units on the unauthorized frequency of
    469.4 MHz. and a mobile relay station on the unauthorized frequency
    of 464.4 MHz.

9.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* (\"*Forfeiture Policy Statement*\"), and Section 1.80 of
    the Rules, the base forfeiture amount for using an unauthorized
    frequency is \$4,000.[^6] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(D) of the Act, which include the nature,
    circumstances, extent, and gravity of the violations, and with
    respect to the violator, the degree of culpability, and history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^7] Applying the *Forfeiture Policy Statement*, Section
    1.80 of the Rules, and the statutory factors, we conclude that a
    \$4,000 forfeiture is warranted.

# ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80 of the Commission\'s Rules, Sims Metal East, LLC, is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of four thousand dollars (\$4,000) for violation of
    Sections 1.903(a) and 1.903(b) of the Rules.[^8]

11. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty (30) days of the release date of
    this Notice of Apparent Liability for Forfeiture, Sims **SHALL PAY**
    the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

12. 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/Account Number and FRN
    Number referenced above. Payment by check or money order may be
    mailed to Federal Communications Commission, P.O. Box 979088, St.
    Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
    Bank -- Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention
    Plaza, St. Louis, MO 63101. Payment\[**s**\] by wire transfer may be
    made to ABA Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to:  Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
    20554.   Please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any questions
    regarding payment procedures. Sims Metal East, LLC, shall also send
    electronic notification on the date said payment is made to
    NER-Response@fcc.gov.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, Suite 1151, New York, NY 10014, within
    thirty (30) days from the release date of this Notice of Apparent
    Liability for Forfeiture and must include the NAL/Acct. No.
    referenced in the caption.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices (\"GAAP\"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director, Financial Operations, 1A625, 445
    12th Street, S.W., Washington, D.C. 20554.[^9]

16. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Sims Metal East, LLC at its
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: The agent also determined on April 10, 2008, that Sims failed to
    transmit the station's assigned call sign as required under Section
    90.425(a), 47 C.F.R. § 90.425(a).

[^4]: 47 U.S.C. §§ 1.903(a), 90.425(a)

[^5]: 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 or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 C.F.R. §§ 0.111, 0.311, 1.80, 1.903(a), and 1.903(b).

[^9]: *See* 47 C.F.R. § 1.1914.