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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ) BATTERY CITY CAR AND ) File No. 820EF0025 LIMOUSINE SERVICE, INC. ) ) Licensee of Business Radio Station WNDV558, ) Brooklyn, New York ) ) MEMORANDUM OPINION AND ORDER Adopted: December 23, 1998 Released: December 23, 1998 By the Acting Chief, Wireless Telecommunications Bureau: I. Introduction 1. The Acting Chief, Wireless Telecommunications Bureau, has before him: (a) a "Notice of Apparent Liability for Forfeiture" (NAL) directed against Battery City Car and Limousine Service, Inc. ("Battery"), licensee of Business Radio Station WNDV558, Brooklyn, New York; (b) a timely response to the NAL filed by Battery on September 30, 1998; and (c) a supplement to that response filed by Battery on November 19, 1998. The NAL was issued because Battery appeared to be operating Business Radio Station WNDV558 with more than the authorized 17 mobile units on the frequency 808.7375 MHz, in apparent violation of Sections 90.113 and/or 90.135(a)(5) of the Commission's Rules, and because Battery apparently failed to identify Station WNDV558, in apparent violation of Section 90.425(a) of the Commission's Rules. Battery requests that we cancel the forfeiture, that we grant an application filed in 1989 to increase Battery's mobile count (File No. 652970), and that we investigate Tel-A-Car of New York, Inc. (Tel-A-Car), a Specialized Mobile Radio licensee operating on the same frequency as Battery. For the reasons that follow, we impose a total forfeiture against Battery in the amount of $20,000 and dismiss its arguments with respect to the 1989 application. Its arguments concerning Tel-A-Car are the subject of a complaint that Battery filed on September 18, 1998 and will be addressed separately. II. Background 2. In March 1997, Tel-A-Car, which shares the frequency pair 808.7375 MHz (mobile)/853.7375 MHz (base) with, and is a competitor of, Battery, filed a letter with the Commission. Therein, Tel-A-Car alleged that Battery was disrupting its communications by operating in excess of its 17 authorized mobile units on the frequency 808.7375 MHz and by failing to monitor before transmitting. On April 16, 1997, the Commission's Compliance and Information Bureau issued a written warning to Battery that the Commission had observed the following apparent violations: operating in excess of the 17 authorized mobile units on the frequency 808.7375 MHz, failing to monitor before transmitting over Station WNDV558, and failing to identify that station. In response to this warning, Battery represented that it "will exercise diligence in the future to ensure compliance with its authorized mobile count." Thereafter, Tel-A-Car filed letters alleging that Battery was continuing to operate in excess of 17 mobile units on the frequency 808.7375 MHz and failing to monitor before transmitting. 3. On July 13, 16, 28 and 29, 1998, Commission personnel monitored the communications of Station WNDV558. Commission personnel observed unidentified communications on the frequencies 808.7375 MHz (mobile) and/or 853.7375 MHz (base) involving approximately 40-42 Battery mobile units between 7:00 p.m. and 9:00 p.m. on July 13, 1998; 50-56 Battery mobile units between 6:00 p.m. and 11:30 p.m. on July 16, 1998; 35-40 Battery mobile units between 4:17 p.m. and 8:41 p.m. on July 28, 1998; and 50-55 Battery mobile units between 4:21 and 9:34 p.m. on July 29, 1998. Battery's license for Station WNDV558 authorizes Battery to operate a maximum of 17 mobile units. III. Discussion A. Use of Unauthorized Mobiles 4. Section 90.113 of the Commission's Rules provides that "[n]o radio transmitter shall be operated in the services governed by this part except under and in accordance with a proper authorization granted by the Commission." Section 90.135(a)(5) of the Commission's Rules requires an application for modification of license for any "[c]hange in the authorized location or number of base stations, fixed, control or, for systems operating on non-exclusive assignments in the 470-512 MHz, 800 MHz or 900 MHz bands, a change in the number of mobile transmitters, or a change in the area of mobile operations from that authorized." Battery's current license authorizes it to operate up to 17 mobile units on 808.7375 MHz. 5. In its response, Battery does not deny that it operated more than 17 mobile units on the frequency 808.7375 MHz. Instead, Battery argues that the Commission erred in requiring Tel-A-Car's consent to the grant of an application Battery filed in 1989 to increase its mobile count. Specifically, Battery takes issue with the decision of the former Private Radio Bureau to return Battery's application and to require Battery to obtain Tel-A-Car's consent before granting the application authorizing an increase in its mobile count. Battery argues that (a) the dismissal of the application was inconsistent with a later decision interpreting Section 90.633(b) of the Commission's Rules, (b) the return of Battery's application was inconsistent with the decision to grant Tel-A-Car an increase in the number of authorized mobiles, and (c) the requirement that Battery obtain consent of Tel-A-Car before receiving authorization to increase its mobile count was an unexplained departure from the Commission's rules and precedents not adopted "in accordance with due process." Battery also argues that the proposed forfeiture amount of $18,000 is excessive and inconsistent with the Bureau's alleged inaction on complaints Battery has filed against Tel-A- Car, as well as several cases cited by Battery. 6. Battery's arguments concerning its returned 1989 application provide no basis for canceling or mitigating the forfeiture. Battery has not explained how an application that was never granted could somehow provide it with authority to operate contrary to the terms of its existing license. Until and unless Battery is successful in modifying its license or obtaining other authority to operate with more than 17 mobiles, Battery is prohibited by the Commission's Rules and the terms of its license from operating more than 17 mobiles on 808.7375 MHz. Accordingly, we conclude that Battery willfully and repeatedly violated Sections 90.113 and 90.135(a)(5) of the Commission's Rules by operating more than 17 mobile units on July 13, 16, 28 and 29, 1998. 7. Moreover, Battery's arguments regarding the dismissal of its 1989 application are grossly untimely. Indeed, on August 15, 1989, counsel for Battery wrote to the Commission: "I do not believe it would serve my client's interests to request a formal interpretation of Rule Section 90.633(b), or to dispute the Bureau's interpretation of the same." As a result, Battery's application was dismissed. If Battery believed it was aggrieved by the return of its application and the requirement to obtain Tel-A-Car's consent, it was required to have filed a petition for reconsideration within thirty days of the Commission action dismissing the application. Accordingly, Battery's current attempt -- nine years later -- to challenge the dismissal of its application does not excuse or mitigate its violation of the Commission's Rules or the terms of its existing license. 8. We also reject Battery's argument that "the level of the proposed fine is entirely inappropriate to the purported offense." The $18,000 forfeiture amount proposed in the NAL for the violations of Sections 90.113 and/or 90.135(a)(5) of the Commission's Rules was based upon an analysis of all the appropriate factors contained in Section 503(b)(2)(D) of the Communications Act, as well as the Commission's Forfeiture Policy Statement. Battery has not refuted the existence of the essential facts upon which the NAL's analysis was based -- the fact that the violations occurred after a prior finding of violation and Battery's promise to comply, the repeated and continuous nature of the violations, and the potential that Battery's violations could cause harm to Tel-A-Car's operations. Moreover, none of the cases Battery cites offers any analysis of the Forfeiture Policy Statement or the factors which the NAL relied upon in setting a proposed forfeiture amount. None of the cases involve the violation at issue here, i.e., use of excessive mobiles. Moreover, each of the cases Battery cites are forfeiture orders imposing forfeiture amounts proposed in the underlying notices of apparent liability, so there is no analysis of how the proposed forfeiture amounts were reached. 9. Finally, we reject Battery's argument that it has been subject to unfair treatment vis-a-vis Tel- A-Car. We will not address Battery's current complaint against Tel-A-Car because that complaint will be addressed separately. We note that the Bureau has taken enforcement action against Tel-A-Car when appropriate. The Commission has held "that the staff has broad discretion in deciding whether to initiate enforcement actions, and such a decision involves the balancing of numerous factors, in addition to whether or not there is an apparent violation." In assessing a forfeiture against Battery, we note our grave concern that Battery has continued to violate the same rules which Battery had previously been admonished for violating, and after Battery had represented that it would comply with those rules. While Battery claims that it "has operated at all times in good faith compliance with the FCC's Rules" because it appears to be monitoring before transmitting and because Battery was allegedly using the frequency in a "limited capacity," that claim is contradicted by its deliberate operation of more than the 17 mobile units allowed by its license. Under its current authorization, Battery may not operate more than 17 mobiles on 808.7375 MHz. If Battery continues to violate our rules, we will take or recommend to the Commission such additional enforcement action as may be appropriate. Accordingly, as proposed in the NAL, we impose a forfeiture of $18,000 against Battery for its violations of Sections 90.113 and/or 90.135(a)(5) of the Commission's Rules. B. Failure to Identify Station 10. Section 90.425(a) of the Commission's Rules provides in pertinent part that "each station or system shall be identified by the transmission of the assigned call sign during each transmission or exchange of transmissions, or once each 15 minutes . . . during periods of continuous operation." In the instant case, Commission personnel monitored unidentified transmissions from Station WNDV558 on July 13, 16, 28 and 29, 1998. In its response, Battery does not deny that it failed to identify Station WNDV558 on those dates. Accordingly, we conclude that Battery violated Section 90.425(a) of the Commission's Rules. 11. Battery argues that the proposed forfeiture should be canceled because there is allegedly a lack of precedent for issuing a forfeiture for failing to identify a station, there was no harm to the public from the failure to identify, and a forfeiture is inconsistent with the decision to admonish Tel-A-Car for failure to identify its station. We reject those arguments. Because the guidelines in the Forfeiture Policy Statement, specify a base forfeiture amount of $1,000 for failure to provide station identification, the Commission clearly views the failure to identify a station as a violation that can lead to a forfeiture. Moreover, the Commission has previously proposed forfeitures for failure to properly identify a station. Battery's argument also ignores the fact that this violation recurred after a warning and a promise to comply. Battery's situation is therefore distinguishable from a first-time violator, and from Tel-A-Car, where there had been no previous record of violations of the rule. As stated in the NAL, we believe that the appropriate forfeiture amount for its violation of Section 90.425(a) of the Commission's Rules should be increased to $2,000 because the violation recurred after a prior violation and a promise to comply. We therefore impose a forfeiture of $2,000 against Battery for its violations of Section 90.425(a). IV. Conclusion and Ordering Clauses 12. Based on the foregoing, we conclude that neither reduction nor recision of the proposed forfeiture is warranted. We find, therefore, that a forfeiture in the amount of $20,000 (consisting of $18,000 for the violations of Sections 90.113 and/or 90.135(a)(5) of the Commission's Rules, and $2,000 for its violations of Section 90.425(a) of the Commission's Rules) is appropriate in this matter. 13. ACCORDINGLY, IT IS ORDERED that the "Petition for Reconsideration" filed on September 30, 1998 and the "Supplement to Petition for Reconsideration" filed November 19, 1998 by Battery City Car and Limousine Service, Inc. IS DISMISSED to the extent it raises arguments concerning Battery's 1989 application, and is otherwise DENIED. 14. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, that Battery City Car and Limousine, Inc. SHALL FORFEIT to the United States the sum of twenty thousand dollars ($20,000) for violations of Sections 90.113, 90.135(a)(5), and 90.425(a) of the Commission's Rules. Payment of the forfeiture may be made by credit card through the Commission's Billings and Collections Branch at (202) 418-1995 or 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 the file number of this proceeding. 15. A copy of this Notice is being sent, by Certified Mail/Return Receipt Requested, to Battery's counsel, Frederick M. Joyce, Esq., Joyce and Jacobs, 1019 19th Street, N.W., 14th Floor, PH-2, Washington, D.C. 20036. FEDERAL COMMUNICATIONS COMMISSION Gerald P. Vaughan Acting Chief, Wireless Telecommunications Bureau