**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-05-NF-001     |
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| Pembroke Square Associates       | ) | NAL/Acct. No.200532640002    |
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| Owner of Two-Way Radio System,   | * | FRN 0002031011               |
| Pembroke Mall                    |   |                              |
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| Virginia Beach, VA               | * |                              |
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**FORFEITURE ORDER**

**Adopted:** June 7, 2005 **Released:** June 9, 2005

By the Regional Director, South Central Region, Enforcement Bureau:

# introduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    Pembroke Square Associates ("Pembroke"), the owner of a two-way
    radio system in Pembroke Mall, Virginia Beach, Virginia, for willful
    and repeated violation of Section 301 of the Communications Act of
    1934, as amended ("Act").[^1] The noted violation involves
    Pembroke's operation of a radio station without a valid license or
    authorization from the Commission.

#  background 

2.  In response to a complaint, on January 12 and 13, 2005, an FCC agent
    from the Norfolk Office of the Enforcement Bureau ("Norfolk Office")
    monitored and visually observed employees of Pembroke Mall
    transmitting on the General Mobile Radio Service (GMRS) frequency
    462.625 MHz, using handheld two-way radio transmitters.

3.  On January 13, 2005, the FCC agent conducted an inspection to
    determine the license status of the transmitters operating on the
    GMRS frequency in the Pembroke Mall. Pembroke authorities admitted
    operation of the two-way radio transmitters on 462.625 MHz. Pembroke
    provided the agent with Private Land Mobile Radio (PLMR) station
    license KB77434 and a Notice of Cancellation that cancelled station
    license KB77434 on June 10, 2004. Pembroke claimed to have received
    oral authorization from the Commission's Wireless Telecommunications
    Bureau staff to continue operation after cancellation of its
    license. Station license KB77434, however, did not include 462.625
    MHz, the GMRS frequency upon which the agent observed Pembroke
    operating.

4.  On January 14, 2005, the Commission's database contained no record
    of any authorization that permitted Pembroke to transmit on 462.625
    MHz. On February 2, 2005, Wireless Telecommunications Bureau staff
    confirmed that Pembroke had not received oral authorization to
    continue operating under station license KB77434 after its
    cancellation.[^2]

5.  Number range CHAPTEROn March 16, 2005, the Norfolk Office issued a
    *Notice of Apparent Liability for Forfeiture* to Pembroke in the
    amount of ten thousand dollars (\$10,000) for the apparent willful
    and repeated violation of Section 301 of the Act.[^3] Pembroke filed
    a response to the *NAL* dated April 14, 2005 requesting cancellation
    or reduction of the proposed forfeiture.

#  discussion

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^4] 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*, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
    303 (1999) ("*Forfeiture Policy Statement*"). In examining
    Pembroke'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.[^6]

7.  Section 301 of the Act states that no person shall use or operate
    any apparatus for the transmission of energy or communications or
    signals by radio within the United States except under and in
    accordance with the Act and with a license.[^7] In its response to
    the *NAL*, Pembroke admits that it operated two-way radio
    transmitters on 462.625 MHz. It also admits that it did not have a
    valid license authorizing it to operate on 462.625 MHz on January 12
    and 13, 2005. Thus, based on the evidence, we find that Pembroke
    willfully[^8] and repeatedly[^9] violated Section 301 of the Act by
    operating two-way radio transmitters on 462.625 MHz without a
    Commission license.

8.  Pembroke asserts that the forfeiture should be cancelled or reduced,
    because 1) the violation was minor; 2) Pembroke made good faith
    efforts to comply with the Rules; and 3) Pembroke has a history of
    compliance with the Rules.

9.  We disagree with Pembroke that the violation was minor. Pembroke
    claims that it did not intend to operate without a license, because
    its station license KB77434 was cancelled due to Commission error.
    It is irrelevant whether Pembroke believes its license was cancelled
    in error.[^10] Pembroke was informed in a letter from the Wireless
    Telecommunications Bureau of the Commission dated June 10, 2004 that
    its license had been cancelled.[^11] Pembroke was aware of the
    cancellation, because it submitted a non-timely petition for
    reconsideration of the cancellation on September 20, 2004. After
    protesting the cancellation of its license and after it received
    another letter dated September 30, 2004 affirming the cancellation,
    Pembroke continued to operate its two-way radio system. Thus,
    Pembroke had ample warning and notice that it was operating without
    a license. Even if Pembroke did not know that it was operating
    without a license, for a violation to be willful, the violator need
    not intend to violate the Rules; the violator need only consciously
    or deliberately act or fail to act.[^12] Pembroke clearly intended
    to operate its two-way radio system. Moreover, the license in
    question, KB77434, when active, did not authorize operation on
    462.625 MHz. Pembroke claims that the company it hired to install
    its communications system told it that it was authorized to operate
    on 462.625 MHz. Hiring a company to install communications needs,
    however, does not excuse the owner and operator of the radio
    equipment from complying with the Rules. Pembroke's license clearly
    stated that it authorized the licensee to operate only on 461.5625
    and 466.5625 MHz. Pembroke knew or should have known that it could
    not operate on 462.625 MHz. Therefore, we find that this was not a
    "minor" violation, worthy of a reduction in the forfeiture amount.

10. We also disagree that Pembroke is entitled to a reduction based on
    good faith efforts to comply with the Rules. As stated above,
    Pembroke continued to operate its two-way radio system after it was
    twice notified that its license was cancelled. Although Pembroke
    stated it submitted the paperwork for a new license to a license
    application company on December 9, 2004, the application was not
    filed with the Commission until January 13, 2005, the day the agent
    contacted Pembroke. The license, WQCE271, was granted on February
    10, 2005, but it only authorizes operation on 462.250 and 467.250
    MHz. Thus, even though Pembroke took initial steps to obtain a new
    license prior to the agent's inspection, it did not discontinue its
    operation pending grant of the license. In addition, the license
    granted does not authorize operation on 462.625 MHz. Finally,
    although Pembroke discontinued operation after the agent's
    inspection on January 13, 2005, licensees are expected to take
    prompt remedial action to comply with the Rules after being informed
    of a violation.[^13] We conclude that Pembroke's actions do not
    constitute good faith efforts worthy of a reduction in the
    forfeiture amount.

11. Finally, we disagree that Pembroke is entitled to reduction based on
    history of compliance with the Rules. Pembroke does appear to have a
    history of compliance with the Rules as it had not received a Notice
    of Violation or Notice of Apparently Liability prior to March
    16, 2005. However, Pembroke ignored several notices that its
    license, KB77434, was cancelled and continued to operate its two-way
    radio system. Pembroke also operated its system before its current
    license, WQCE271, was granted. After considering Pembroke's blatant
    disregard for the Rules, we conclude that a reduction of the
    forfeiture amount based on a history of compliance with the Rules is
    inappropriate.[^14]

12. We have examined Pembroke's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Pembroke willfully and repeatedly violated Section 301 of the Act.
    We find no basis for cancellation or reduction of the \$10,000
    forfeiture proposed for this violation.

#  ordering clauses

13. 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(f)(4) of the Commission's Rules,[^15] Pembroke Square
    Associates **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    ten thousand dollars (\$10,000) for willfully and repeatedly
    violating Section 301 of the Act.

14. 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.[^16] 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: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^17]

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Pembroke Square Associates at its record of address and its
    attorney, Barry Randolph Koch, Inman & Strickler PLC, 575 Lynnhaven
    Parkway, Suite 200, Virginia Beach, VA 23452-7350.

    FEDERAL COMMUNICATIONS COMMISSION

    Dennis P. Carlton

    Regional Director, South Central Region

    Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: Pursuant to Section 1.931(b)(5) of the Commission's Rules,
    licensees of Private Wireless Services may request special temporary
    authority to operate via the telephone under special limited
    circumstances, provided a properly signed application is filed
    within 10 days of such oral request. 47 C.F.R. § 1.931(b)(5).
    Pembroke called the Wireless Telecommunications Bureau on January
    14, 2005, a day after the agent's inspection. However, the Bureau
    does not have a record of any earlier calls from Pembroke or any
    record that oral authority to operate beyond the license expiration
    was requested or granted. Thus, even based on Pembroke's version of
    events, it did not have authority to operate on January 12 and 13,
    2005. Moreover, even if such authority was granted on January 14,
    2005, Pembroke did not submit a written application within 10 days
    of the alleged oral request, as would have been required by the
    Rules.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200532640002 (Enf. Bur., Norfolk Office, March 16, 2005) ("*NAL*").

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 47 U.S.C. § 301.

[^8]: 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,' ... 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).

[^9]: 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).

[^10]: We note that license KB77434 was cancelled after Pembroke failed
    to respond to three separate audit letters, issued October 12, 2001,
    April 19, 2002, and February 27, 2004. Even if Pembroke submitted
    the requested information in May of 2002, as Pembroke alleges, the
    Commission has no record of the submission and Pembroke was informed
    of this fact by the February 27, 2004 audit letter. Pembroke failed
    to respond to the February 27, 2004 letter, and the Commission
    canceled its license. Thus, the license was not cancelled by
    mistake, as Pembroke alleges.

[^11]: Notice of the cancellation was also provided in a Public Notice,
    DA 04-1553, dated June 8, 2004.

[^12]: *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^13]: *See AT&T Wireless Services, Inc.*, 17 FCC Rcd 21861, 21864-75
    (2002); *Sonderling Broadcasting Corp.*, 69 FCC 2d 289, 291 (1978);
    *Odino Joseph*, 18 FCC Rcd 16522, 16524, para. 8 (Enf. Bur. 2003);
    *South Central Communications Corp.,* 18 FCC Rcd 700, 702-03, para.
    9 (Enf. Bur. 2003); *Northeast Utilities,* 17 FCC Rcd 4115, 4117,
    para. 13 (Enf. Bur. 2002).

[^14]: *See All American Telephone, Inc.*, 16 FCC Rcd 16601 (2001).

[^15]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^16]: 47 U.S.C. § 504(a).

[^17]: *See* 47 C.F.R. § 1.1914.