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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
All American Citywide Rainbow Transit, Inc. ) File No.:
EB-02-NY-128
) NAL/Acct. No. 200332380001
WNLH895 ) FRN 0007-5630-75
Long Island City, New York )
FORFEITURE ORDER
Adopted: January 20, 2004 Released:
January 22, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand
two hundred dollars ($3,200) to All American Citywide
Rainbow Transit, Inc. (``Citywide''), a school bus
operator, for willful and repeated violation of
Section 90.403(a)(2) of the Commission's Rules
(``Rules'').1 Citywide is authorized under call sign
WNLH895 to operate radio transmitting equipment on the
frequency of 155.235 MHz, at 11-08 30th Avenue, Long
Island City, New York. The noted violation involves
Citywide's failure to operate radio transmitting
equipment in a permissible manner by operating on the
unauthorized frequency of 155.265 MHz.
2. On October 8, 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 $4,000 to Citywide.2 Citywide filed a
response to the NAL dated October 23, 2002.
II. BACKGROUND
3. On June 28, 2002, the New York Office received a
complaint about interference on frequency 155.265 MHz. On July
8, 2002, agents from the New York Office observed an interfering
signal on 155.265 MHZ. Using direction finding techniques, the
agents traced the source of the interference on 155.265 MHz to
transmitters located at 4-05 26th Avenue, Long Island City, New
York, and 11-08 30th Avenue, Long Island City, New York. After
returning to the office the agents determined from the FCC's data
base that there is no authorization to operate a station on
155.265 MHz in Long Island City, New York.
4. On July 16, 2002, the agents again observed a radio
signal on 155.265 MHz and identified the source as 4-05 26th
Avenue, Long Island City, New York. The agents then conducted an
inspection of the station at that location and determined that
Citywide operated that station and that it was licensed to
operate radio station WNLH895 on 155.235 MHz.
5. On October 8, 2002, the New York Office issued an NAL
in the amount of $4,000 to Citywide. In its response, Citywide
states that, when it moved its station to a new location, its
transmitter was incorrectly installed on the wrong frequency and
that this problem has been corrected. Citywide seeks
cancellation or reduction of the proposed monetary forfeiture and
asserts that it has a history of compliance.
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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Citywide'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.5
7. Section 90.403(a)(2) of the Rules requires licensees of
radio stations in the private land mobile radio services to
``exercise such direction and control as is necessary to assure
that all authorized facilities are employed only in a permissible
manner.'' The FCC agent's investigation establishes that
Citywide operated transmitters located at 4-05 26th Avenue, Long
Island City, New York, and 11-08 30th Avenue, Long Island City,
New York, on an unauthorized frequency (155.265 MHZ) and,
therefore, failed to exercise the direction and control necessary
to assure that its facilities were employed only in a permissible
manner. Based on the facts before us, we find that Citywide
willfully6 and repeatedly7 violated Section 90.403(a) (2) of the
Rules.
8. No mitigation is warranted on the basis of Citywide's
correction of the violation. 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.''8
9. We do, however, find that Citywide has a history of
overall compliance and, accordingly, reduce the forfeiture amount
to $3,200.
10. We have examined Citywide's response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Citywide willfully and repeatedly violated Section
90.403(a)(2) of the Rules and we find that, although cancellation
of the proposed monetary forfeiture is not warranted, reduction
of the forfeiture amount to $3,200 is appropriate.
11. The agents' investigation and Citywide's response to
the NAL indicate that WNLH895 has a control point and a fixed
transmitter site at 4-05 26th Avenue, Long Island City, New York.
However, the Commission's license records indicate that the
authorized location of WNLH's control point and fixed transmitter
site is 11-08 30th Avenue, Long Island City, New York. Operation
of a radio station from a location not authorized by the
station's license is prohibited by Section 301 of the
Communications Act of 1934, as amended (``Act''),9 and Sections
1.903(a) 10 and 90.432(a)(2) of the Rules. Accordingly, we will
require, pursuant to Section 308(b) of the Act,11 that Citywide
report to the Enforcement Bureau within thirty (30) days of the
release of this Order whether WNLH895's control point and fixed
transmitter site are at their authorized location. Citywide's
report must be submitted in the form of an affidavit signed by an
officer or director of the licensee. If Citywide fails to submit
such a report or we find that Citywide is still operating from an
unauthorized location, we will consider further appropriate
enforcement action.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,12 and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 All American Citywide Rainbow Transit, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $3,200 for
willfully and repeatedly violating Section 90.403(a)(2) of the
Rules.
13. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Citywide must submit the report described in Paragraph 11,
above, within 30 days from the release of this Order, to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Room 7-A 820,
Washington, D.C. 20554
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.14
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. 200332380001, and FRN 0007-5630-75. 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. 20554.15
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 All American Citywide Rainbow Transit,
Inc., 11-08 30th Avenue, Long Island City, New York 11102.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 90.403(a)(2).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332380001 (Enf. Bur., New York Office, released October 8,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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).
7 Citywide operated on an unauthorized frequency on June 28
and July 16, 2002. As provided by 47 U.S.C. § 312(f)(2), a
violation which occurs more than once is ``repeated.'' 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. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
8 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).
9 47 U.S.C. § 301
10 47 C.F.R. § 1.903(a)
11 47 U.S.C. § 308(b)
12 47 U.S.C. § 503(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.