Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File Number EB-05-TP-144     |
|                                  | * |                              |
| Brasfield & Gorrie, LLC          | ) | NAL/Acct. No. 200632700002   |
|                                  | * |                              |
| Licensee of Stations WPQG374 and | * | FRN 0008802050               |
| WPLY756                          |   |                              |
|                                  | * |                              |
| Birmingham, Alabama              | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

## FORFEITURE ORDER

**Adopted:** August 25, 2006 **Released:** August 29, 2006

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

I.  **INTRODUCTION**

```{=html}
<!-- -->
```
1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of four thousand dollars (\$4,000) to
    Brasfield & Gorrie, LLC ("Brasfield & Gorrie"), licensee of Wireless
    Radio Service stations WPQG374 and WPLY756, for willful and repeated
    violations of Sections 1.903(a) and 90.425(a) of the Commission's
    Rules ("Rules").[^1] The noted violations involve Brasfield &
    Gorrie's failure to operate its stations in accordance with its
    station authorizations and failure to identify its stations'
    transmissions.

**II. BACKGROUND**

2.  On August 13, 2005, in response to a complaint of interference to
    public safety radio communications, an agent of the Commission's
    Tampa Office of the Enforcement Bureau ("Tampa Office") observed the
    interference on the complainant's authorized radio frequency of
    465.550 MHz in Daytona, Florida. The agent monitored a series of
    voice communications on 465.550 MHz from a mobile direction finding
    vehicle for over ninety minutes. The communications consisted of
    discussions of the operation of construction cranes. This type of
    communications matched the description of the interference given by
    the complainant. No station identification was transmitted during
    the time the agent monitored. Using radio direction finding
    techniques, the agent determined that the source of the
    transmissions on 465.550 MHz emanated from a construction site in
    downtown Orlando, Florida.

3.  On August 15, 2005, the agent returned to the Orlando construction
    site and monitored the frequency 465.550 MHz for over thirty
    minutes. No station identification was transmitted during the time
    the agent monitored. The agent verified with direction finding
    techniques that the transmissions on 465.550 MHz emanated from the
    site. The agent contacted the complainant and positively confirmed
    over the phone that the interference coincided precisely with the
    radio transmissions observed emanating from the construction site in
    Orlando. The agent then interviewed the managers of Brasfield &
    Gorrie located at the construction site. The agent played a tape
    recording of the interference, and the managers stated that they
    recognized the voices of the individuals as members of their
    construction crew. The agent requested a copy of Brasfield &
    Gorrie's license to operate its radio system but they were unable to
    provide one at that time. The managers stated that they would
    utilize a different radio channel.

4.  On August 16, 2005, a representative of the company that sold and
    programmed the radios used by Brasfield & Gorrie at the Orlando
    construction site informed the agent that Brasfield & Gorrie held
    two nationwide licenses, WPLY756 and WPQG374. That company informed
    the agent that it had programmed Brasfield & Gorrie's radios on
    465.550 MHz. Brasfield & Gorrie's licenses do not authorize
    operations on 465.550 MHz.

5.  On February 27, 2006, the Tampa Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") in the amount of \$5,000 to
    Brasfield & Gorrie.[^2] Brasfield & Gorrie filed a response to the
    *NAL* dated March 23, 2006.

**III. DISCUSSION**

6.  The proposed forfeiture amount in this case was 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*.[^5] In
    examining Brasfield & Gorrie'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 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.[^7] At the time of the
    observed unauthorized operations in August 2005, Brasfield & Gorrie
    held two Wireless Radio Service licenses granted by the Commission
    with callsigns WPLY756 and WPQG374. These two licenses authorized
    Brasfield & Gorrie to operate mobile radio units in an area
    encompassing most of the continental United States, including
    Orlando, Florida. The two licenses authorized operation on four
    frequencies assigned to the Industrial/Business Radio Pool.[^8] On
    August 13 and 15, 2005, Brasfield & Gorrie operated radio
    transmitters on the frequency 465.550 MHz, a frequency not
    authorized by its licenses. The frequency 465.550 MHz is authorized
    for use only by licensees in the Public Safety Radio Pool.[^9] In
    its response, Brasfield & Gorrie requests cancellation of the
    forfeiture imposed for this violation. Brasfield & Gorrie states
    that, upon notification of the violation by the Commission agent, it
    immediately contacted the third party contractor who "took immediate
    corrective action and fully cooperated" with the agents. Brasfield &
    Gorrie's response, which included a statement from the third party
    contractor, states that the unauthorized frequency was mistakenly
    programmed into its radios by the third party contractor who
    supplies and programs its radios. The mistake resulted in the
    erroneous entry of one digit of the programmed frequency, namely
    "465.550" instead of the authorized "464.550." Brasfield & Gorrie
    argues that the violation was not 'willful' because it resulted from
    "an inadvertent programming error rather than ... committed
    consciously or deliberately." It also argues the violation should
    not be characterized as 'repeated' since it took "swift corrective
    action (within a day of notice)."

8.  We disagree. For a violation to be considered 'willful,' it is not
    the violation that needs be "committed consciously or deliberately"
    but rather the act itself.[^10] There is no dispute that Brasfield &
    Gorrie, through its employees, consciously and deliberately operated
    radio transmitting equipment at the construction site in Orlando,
    Florida. In so doing, its intent to use an unauthorized frequency is
    unnecessary to a finding of 'willful.' Additionally, the action by a
    third party contractor in installing the unauthorized frequency
    which resulted in the violation does not excuse the licensee from
    forfeiture liability.[^11] While Brasfield & Gorrie's prompt
    response to investigate and correct the violation is commendable, it
    is also expected. \"\[C\]orrective action taken to come into
    compliance with Commission rules or policy is expected, and does not
    nullify or mitigate any prior forfeitures or violations.\"[^12]
    Neither does Brasfield & Gorrie's prompt response to remedy the
    violation mitigate a finding of "repeated" as it is undisputed that
    the transmissions on the unauthorized frequency occurred multiple
    times on more than one day.[^13] Therefore, we find that Brasfield &
    Gorrie failed to comply with Section 1.903(a) of the Rules and that
    this violation was willful and repeated.

9.  Section 90.425(a) of the Rules requires each station to identify in
    English or International Morse Code its assigned call sign during
    each transmission or exchange of transmissions, or once each 15
    minutes.[^14] On August 13 and 15, 2005, an agent from the Tampa
    Office monitored Brasfield & Gorrie's radio transmissions for more
    than ninety minutes and thirty minutes, respectively. The agent
    never heard any of Brasfield & Gorrie's radio users identify by its
    assigned call signs. Therefore, Brasfield & Gorrie failed to comply
    with Section 90.425(a) of the Rules. In its response, Brasfield &
    Gorrie does not deny the violation but requests cancellation or
    reduction of the forfeiture for this violation because it was
    unaware of the requirement. It is undisputed that Brasfield & Gorrie
    consciously and deliberately made multiple radio transmissions on
    more than one day. It is also undisputed that Brasfield & Gorrie
    failed to identify those transmissions with its assigned call signs.
    The Commission has long held that unfamiliarity with the statutory
    or regulatory requirements does not mitigate a forfeiture.[^15]
    Therefore, this violation was willful and repeated.

10. After considering Brasfield and Gorrie's past history of compliance,
    we conclude that a reduction of the forfeiture amount from \$5,000
    to \$4,000 is appropriate.[^16]

11. We have examined Brasfield & Gorrie's response to the *NAL* pursuant
    to the statutory factors above, and in conjunction with the
    *Forfeiture Policy Statement*. We conclude that Brasfield & Gorrie
    willfully and repeatedly violated Sections 1.903(a) and 90.425(a) of
    the Rules. We find no basis for cancellation of the forfeiture, but
    do find that reduction of the forfeiture amount from \$5,000 to
    \$4,000 based on Brasfield & Gorrie's history of compliance is
    appropriate.

**IV. ORDERING CLAUSES**

12. **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Act,[^17] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission's Rules,[^18] Brasfield & Gorrie, LLC **IS LIABLE FOR A
    MONETARY FORFEITURE** in the amount of \$4,000 for violation of
    Sections 1.903(a) and 90.425(a) of the Rules.[^19]

13. 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.[^20] 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: Associate Managing Director, Financial
    Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
    20554.[^21]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Brasfield & Gorrie, LLC at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.903(a), 90.425(a).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632700002 (Enf. Bur., South Central Region, Tampa Office,
    released February 27, 2006).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 47 C.F.R. § 1.903(a).

[^8]: *See* 47 C.F.R. § 90.35.

[^9]: *See* 47 C.F.R. § 90.20.

[^10]: 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).

[^11]: *See, e.g., In the Matter of Acapulco Car Service, Inc.*, 19 FCC
    Rcd 272, 273 (Enf. Bur. 2004); *Eure Family Limited Partnership*, 17
    FCC Rcd 21861, 21863-64 (2002) (finding that licensees are
    responsible for the acts and omissions of their employees and
    independent contractors).

[^12]: *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 at ¶ 7 (1994).

[^13]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]he term
    \'repeated\', when used with reference to the commission or omission
    of any act, means the commission or omission of such act more than
    once or, if such commission or omission is continuous, for more than
    one day."

[^14]: 47 C.F.R. § 90.425(a).

[^15]: *See, e.g., Kenneth Paul Harris, Sr.,* 15 FCC Rcd 12933, 12935 ¶
    7 (Enf. Bur. 2000) (denying a mitigation claim of a broadcast
    licensee, stating that its ignorance of the law did not excuse the
    unauthorized transfer of the station); *Maxwell Broadcasting Group,
    Inc.*, 8 FCC Rcd 784, 784 ¶ 2 (MMB 1993) (denying a mitigation claim
    of a noncommercial broadcast licensee, stating that the excuse of
    "inadverten\[ce\], due to inexperience and ignorance of the rules .
    . . are not reasons to mitigate a forfeiture" for violation of the
    advertisement restrictions).

[^16]: *See Max Media of Montana, L.L.C.*, 18 FCC Rcd 21375, 21379 ¶ 14
    (Enf. Bur. 2003); *South Central Communications Corp.*, 18 FCC Rcd
    700, 703 ¶ 9 (Enf. Bur. 2003).

[^17]: 47 U.S.C. § 503(b).

[^18]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^19]: 47 C.F.R. §§ 1.903(a), 90.425(a).

[^20]: 47 U.S.C. § 504(a).

[^21]: *See* 47 C.F.R. § 1.1914.