Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

) File No.: EB-02-NY-124

In the Matter of )

) NAL/Acct. No. 200232380003

Gateway Security Systems, Inc. )

Jamaica, NY ) FRN 0007-1609-22

## FORFEITURE ORDER

**Adopted: November 17, 2003 Released: November 19, 2003**

By the Chief, Enforcement Bureau:

I.  **INTRODUCTION**

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1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of five thousand dollars (\$5,000) to
    Gateway Security Systems, Inc. ("Gateway") for willful violation of
    Section 301 of the Communications Act of 1934, as amended
    ("Act").[^1] The violation involves Gateway's operation of a
    repeater station on 464.0375 MHz and portable radio transmitting
    equipment on 469.0375 MHz without a license.

2.  On August 19, 2002, the District Director of the Commission's New
    York, New York, Field Office ("New York Office") issued a *Notice of
    Apparent Liability for Forfeiture* ("*NAL*") in the amount of ten
    thousand dollars (\$10,000) to Gateway for the noted violation. [^2]
    Gateway filed a response on September 18, 2002.

**II. BACKGROUND**

3.  On May 23, 2002, the New York Office received a complaint alleging
    interference to the frequency pair 464.0375/469.0375 MHz. On May 24,
    2002, Commission agents from the New York Office, using direction
    finding techniques, identified the source of the interference as
    Gateway Security Systems, Inc., at Terminal #4, JFK International
    Airport, Jamaica, New York ("JFK"). Through their monitoring, the
    agents determined that Gateway was operating a repeater station on
    464.0375 MHz and portable transceivers on 469.0375 MHz without
    authorization from the Commission. On May 28, 2002, the New York
    Office contacted Gateway by telephone, informed it of the
    interference complaint and of the unlicensed operation and directed
    it to cease transmissions. On May 30, 2002, the New York Office
    issued a Warning Letter to Gateway formally notifying it that the
    unlicensed operation violated Section 301 of the Act. Although the
    letter provided an opportunity for a response, Gateway did not
    respond. On August 19, 2002, the New York Office issued a *NAL* in
    the amount of \$10,000 to Gateway for the unlicensed radio
    operation.

4.  In its response to the *NAL*, Gateway asserted that in August, 2001,
    it assumed a contract with the Port Authority of New York ("Port
    Authority") to provide security services at JFK, and was required
    under the contract to use radio equipment owned by the Port
    Authority. According to Gateway, the contract required immediate
    action and nothing in the contract alerted Gateway that it was
    incumbent upon Gateway to secure a license in its own name for
    operation at JFK. In view of that, Gateway claimed, it began
    operation immediately upon being awarded the contract.

5.  Gateway further stated in its response that upon notification by FCC
    personnel nine months later, on May 28, 2002, it ceased operation,
    began an inquiry and found that Spectraguard Company, Gateway's
    predecessor, was the authorized licensee. Gateway contacted a
    frequency coordinator on May 29, 2002, and on the same day applied
    for a proper license on a new frequency. Gateway correctly noted
    that filing the application gave it conditional authority to begin
    operation. The application was granted and Gateway became the
    licensee of WPVR 278 on August 5, 2002.

> 6\. Additionally, Gateway explained that it did not respond to the
> Warning Letter because it did not receive the letter until June 15,
> and that the Commission had already contacted Gateway on June 9, at
> which time Gateway informed the Commission that the transmissions had
> ceased May 28.
>
> 7\. Gateway submitted that it immediately ceased operation upon being
> informally contacted by the FCC, took action to become properly
> licensed, and did not operate again until a proper application was
> filed with the FCC. Gateway did not realize that neither its company
> name, nor that of the Port Authority, appeared on the license; and
> posited that it was an inadvertent ministerial error that led to the
> unlicensed operation. It stated that it has no history of rule
> violations, and that it reasonably believed that its operations were
> authorized under a license held by the Port Authority.

8.  Gateway contended that in view of its corrective action, a
    forfeiture is not warranted. Gateway cited instances in which the
    Commission issued verbal or written warnings, and issued a monetary
    forfeiture only after operation continued in spite of those
    warnings.[^3] Gateway further contended that if a forfeiture is
    warranted, it should be reduced, citing cases in which the
    Commission issued forfeitures in lesser amounts for unlicensed
    operation, or reduced forfeitures issued to licensees based on the
    short period of unlicensed operation.[^4]

> **III. DISCUSSION**

10\. The proposed forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,[^5] Section 1.80 of the
Rules,[^6] and *The Commission's Forfeiture Policy Statement and
Amendments of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines* ("*Forfeiture Policy Statement*").[^7] In examining
Gateway's response to the *NAL*, Section 503(b) of the Act requires the
Commission to 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 such
other matters as justice may require.[^8]

11. Section 301 of the Act requires a license for radio operation such
    as that conducted by Gateway. Section 312(f)(1) of the Act[^9]
    provides that "the term 'willful', when used with reference to the
    commission or omission of any act, means the conscious or 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...." This definition applies to the term "willful" as
    used in Section 503(b) of the Act. See *Southern Broadcasting Co*.,
    6 FCC Rcd 4387 (1991). Gateway's unlicensed radio operation began in
    August, 2001, and continued for nine months, until May 28, 2002,
    when it was contacted by the New York Office. Gateway knew it was
    operating on the relevant channels. Gateway's radio operation was,
    therefore, clearly willful. Moreover, Gateway's action to become
    properly licensed was remedial and occurred only after notice from
    the Commission. As the Commission stated in *Seawest* *Yacht
    Brokers*, 9 FCC Rcd 6099, 6099 (1994), "corrective action taken to
    come into compliance with Commission rules or policy is expected,
    and does not nullify or mitigate any prior forfeitures or
    violations."[^10] Finally, Gateway, having become licensed only
    after the notification from the Commission, has no history of
    compliance as a licensee that it can cite in its favor.

12. In regard to Gateway's contention that a warning should have been
    sufficient in this matter, and that the forfeiture should be
    cancelled, we disagree. Neither the Commission nor its agents are
    obligated to provide a licensee an opportunity to cure a violation
    prior to issuing a *NAL.*[^11] To the extent that Gateway argued in
    the alternative that a lesser sanction is warranted, and cited cases
    in which the forfeiture amounts were smaller, each of those cases is
    also distinguishable from the instant case. [^12] Nevertheless, we
    agree that, analogous to the cases cited, a reduction is in order
    from the \$10,000 base amount. Upon receiving the security contract
    from the Port Authority, Gateway's use of radio communications was
    ancillary to its security responsibilities at the airport. Gateway's
    predecessor in interest under the Port Authority contract had a
    license that was not transferred to Gateway when the Port Authority
    hired it. Furthermore, much of the operation by Gateway occurred
    during the period after the attack on the World Trade Center, during
    which every U.S. airport operated under heightened security. In that
    regard, Gateway focused on its responsibilities under its contract
    and not upon the ministerial details of the licensing arrangement
    for radio equipment handed over to it by the Port Authority.
    Gateway's unlicensed operation was not analogous to the intentional
    unlicensed operation of a "pirate" station operator who operates its
    station in flagrant violation of Commission rules. In view of these
    circumstances, we determine that reduction of the \$10,000 base
    forfeiture amount to five thousand dollars (\$5,000) is
    warranted.[^13]

**IV. ORDERING CLAUSES**

13\. **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 Commission's
Rules ("Rules"),[^14] Gateway **IS LIABLE FOR A MONETARY FORFEITURE** in
the amount of \$5,000 for willfully 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.[^15] 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. 200232380003 and FRN 0007-1609-22. Requests
for full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.[^16]

15\. **IT IS FURTHER ORDERED THAT** a copy of this *Order* shall be sent
by first class mail and certified mail, return receipt requested, to
counsel for Gateway, Garret R. Hargrave, Esquire, 1331 H Street, N.W.,
Suite 500, Washington, DC 20005.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232380003 (Enf. Bur., New York Office, released August 19, 2002).

[^3]:
    > *See*, *In the Matter of Joseph Frank Ptak,* 13 FCC Rcd 22168
    > (1998); *In re Jerry Szoka,* CIB Docket No. 98-48, FCC 98D-3
    > (1998).

[^4]:
    > *See*, *WWC Licensee* LLC, 16 FCC Rcd. 19490 (Enf. Bur. 2001)
    > ("*WWC*") (\$5,000 forfeiture for unlicensed operation reduced to
    > \$4,000); *Falcon Radio, Inc*., 16 FCC Rcd. 14830 (Enf. Bur. 2001)
    > ("*Falcon*") (\$5,000 forfeiture for unlicensed operation of
    > business radio system); *Page-Comm*, 16 FCC Rcd. 6842 (Enf. Bur.
    > 2001) ("*Page-Comm*") (\$5,000 forfeiture for unlicensed operation
    > of a paging system later reduced to \$3,000); *US Unwired, Inc.*,
    > 15 FCC Rcd 20295 (Enf. Bur. 2000) ("*US Unwired*") (\$5,000
    > forfeiture for operating a paging system without a license);
    > *Commercial Radio Service Corp*, 16 FCC Rcd. 3543 (Enf. Bur.,
    > Tech. & Pub. Safety Div. 2001) ("*Commercial*") (forfeiture amount
    > was \$6,000 for operating eleven 800 MHz stations without a
    > license); *Verizon Florida, Inc*., 16 FCC Rcd. 2590 (Enf. Bur.,
    > Tech. & Pub. Safety Div. 2001) ("*Verizon Florida*") and *Verizon
    > Southwest, Inc*., 16 FCC Rcd 2247 (Enf. Bur., Tech. & Pub. Safety
    > Div. 2001) ("*Verizon Southwest*") (forfeitures for unlicensed
    > operation were \$5,000 each).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 U.S.C. § 312(f)(1).

[^10]: *See also, Callais Cablevision, Inc*., 17 FCC Rcd 22626, 22629
    (2002); *Radio Station KGVL,* Inc., 42 FCC 2d 258, 259 (1973); and
    *Executive Broadcasting Corp*., 3 FCC 2d 699, 700 (1966).

[^11]: *See, AT&T Wireless Services Inc*, 17 FCC Rcd 21866, 21871 n. 20
    (2002 (enforcing a forfeiture issued without a Notice of Violation).
    *See also Missouri RSA*, 18 FCC Rcd 12653 (Enf. Bur. 2003)
    ("\[n\]othing in the Communications Act or the Commission's rules
    entitles a licensee to an opportunity to correct a violation prior
    to the issuance of a NAL. Licensees cannot expect simply to sit back
    and await Commission findings of violations before taking
    appropriate steps to ensure compliance with Commission rules.").
    Neither 47 U.S.C. § 503(b) nor 47 C.F.R. §§ 1.80 and 1.89 require
    the Commission to issue a Notice of Violation prior to the issuance
    of a NAL.

[^12]: While the proposed forfeiture was indeed smaller in each case
    cited by Gateway (\$6,000 in *Commercial*, and \$5,000 in *US
    Unwired*, *Verizon Florida*, *Verizon Southwest* and *Page-Comm),*
    in all cited instances the recipient of the forfeiture had held a
    valid license but continued operating after expiration and before
    filing a renewal application. Moreover, *WWC* had an application on
    file and mistakenly believed that it allowed conditional operating
    authority prior to grant; and *Falcon* had filed a request for
    Special Temporary Authority, unaware of the fact that the licensed
    had been cancelled a year prior to its filing. Gateway, however,
    never had a license and had nothing on file with the Commission.
    Therefore, the facts of this case are not comparable and reduction
    of the proposed forfeiture is not warranted in this matter.

[^13]: *See, WWC* at 19492.

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.