Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Graytop Cab, Inc. ) NAL/Acct.No.: 915ST0004 Seattle, Washington 98119 ) FORFEITURE ORDER Adopted: July 20, 1999 Released: July 26, 1999 By the Director, Legal Services Group Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL") for monetary forfeiture issued on March 15, 1999 to Graytop Cab, Inc. ("Graytop"), and the April 19, 1999 response thereto filed on behalf of Graytop by Frank Dowgilla, General Manager of Puget Sound Dispatch, L.L.C. ("Puget Sound"), which provides accounting and dispatch services for Graytop. The NAL proposed imposition of a forfeiture against Graytop in the amount of $4,000, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful and repeated violation of Section 90.113 of the Rules, 47 C.F.R.  90.113. For the reasons stated below, we affirm the $4,000 forfeiture amount. BACKGROUND 2. On November 25, 1998, an agent from the Bureau's Seattle, Washington Field Office investigated a complaint of interference to a private land mobile station operating on frequency 152.330 MHz in Seattle, Washington. Using radio direction finding techniques, the source of the interference was determined to be transmissions emanating from a transmitter site located at 525 14th Avenue East, Seattle, Washington, on frequency 152.315 MHz. A review of the Commission's records revealed no valid station license authorizing transmissions on 152.315 MHz from this location in Seattle. The Commission's records did show that a license had been issued to Graytop authorizing transmissions on 152.315 MHz, with the call sign WPHB786, in Bremerton, Washington -- 22 miles from the transmitter site which had been determined to be the source of the interference. An agent for the Seattle Field Office contacted Puget Sound to inform it of the interference. Additionally, the Seattle Field Office sent a letter to Graytop by facsimile on November 25, 1998, informing it of the interference complaint and investigation findings, notifying it of the potential penalties for continued station operations outside the scope of its authorization, and warning it to discontinue radio operations from the unauthorized location. The letter also informed Graytop that an inspection of its facility had been scheduled with its radio service representative for November 30, 1998 at 10:00 a.m. 3. On November 30, 1998, an inspection of Graytop's unauthorized transmitter site at 525 14th Avenue East, Seattle, Washington, revealed that its station, WPHB786, was permanently installed at this unauthorized location and controlled via phone line. The station was in stand-by mode at that time. However, Graytop's radio service representative indicated that he had repaired the antenna at the site on November 24, 1998 and placed the system on the air. 4. On December 8, 1998, in response to the complainant's claim that the interference had resumed, an agent from the Seattle Field Office conducted a follow-up investigation. The source of the interference was again determined to be transmissions emanating from 525 14th Avenue East, Seattle, Washington on 152.315 MHz. The agent interviewed employees at Graytop's control point, Puget Sound, who admitted to operating the transmitter at 525 14th Avenue East, Seattle, Washington to conduct tests. The agent advised Puget Sound that the operation was causing interference and, at the agent's request, they immediately shut the transmitter off. The Seattle Field Office subsequently issued the subject NAL in the amount of $4,000 on March 14, 1999, for the willful and repeated violations of Section 90.113 of the Rules. 5. In his response to the NAL, Mr. Dowgilla requests that the forfeiture not be imposed on Graytop, claiming that Graytop could not find a record of the receipt of the November 25, 1998 warning letter. Mr. Dowgilla states further that the transmitter was immediately turned off during the December 8, 1998 inspection upon learning that operation of the transmitter at that site was a violation of the Rules. The response acknowledges receipt of a telephone call on November 25, 1998 from the Seattle Field Office, but claims that the call merely scheduled the November 30, 1998 inspection of the transmitter site at 525 14th Avenue East in Seattle (during which time the Graytop transmitter at that site was in stand-by mode). However, the response also acknowledges that Graytop's station was operated from the transmitter located at 525 14th Avenue "intermittently for testing to determine the coverage this site provided," as it intended to "get this frequency licensed for this site" if the coverage was found to be adequate. The response further states that the transmitter at issue has not been operated since it was turned off at the FCC's request on December 8, 1998, and that it was scheduled to be permanently removed from the 14th Avenue site in April, 1999. DISCUSSION 6. As the NAL explicitly states, the forfeiture amount in this case was assessed in accordance with Section 503 of the Act, Section 1.80 of the Rules, 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. pending ("Policy Statement"). In examining Graytop'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. 47 U.S.C.  503(b)(2)(D). 7. Section 90.113 of the Rules provides that no land mobile radio transmitter shall be operated except under and in accordance with a proper authorization granted by the Commission. In the instant case, it is apparent from the response that Graytop was aware that a license was required to operate its transmitter in Seattle on 152.315 MHz prior to being so informed by the FCC. Graytop, through Puget Sound, acknowledges that it operated intermittently on that frequency without a license to determine whether it should pursue a license for the frequency in Seattle. This admission undermines the contention that Graytop has complied with the Commission's regulations as soon as it was "notified" that the unlicensed operation was a violation of the Act. "Licensees are expected to know and comply with the Commission's rules, and will not be excused for violations thereof, absent clear mitigating circumstances." See In the Matter of Liability of Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979), citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) and Emporium Broadcasting Co., 23 FCC 2d 868 (1970). With respect to Graytop's receipt of the November 25, 1998 warning letter, we have no reason to believe that the letter was not received, inasmuch as the facsimile transmission report indicates that the transmission was sent without error. Furthermore, the fact that Graytop has refrained from reactivating the transmitter since the second FCC inspection does not negate its prior violation of the Rules, especially since the operation continued after being informed of the unauthorized operation by phone and letter. Moreover, remedial action to correct a violation, although commendable, will not nullify a forfeiture penalty. See Station KGVL, Inc., 42 FCC 2d 258, 259 (1993). 8. We have examined Graytop'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 Graytop has failed to provide sufficient justification for reducing the forfeiture amount. Therefore, we affirm the forfeiture amount of $4,000. 9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Rules, 47 C.F.R.  1.80, and the Commission's Policy Statement, Graytop Cab, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for the willful violation of Section 301 of the Act, 47 U.S.C.  301. 10. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R.  1.80(f), Graytop Cab, Inc. shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $4,000 for violation of Section 301 of the Act. Payment of the forfeiture shall be made, in U.S. dollars, by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. The remittance should be marked NAL/Acct. No. 915ST0004, and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3-DLH Compliance and Information Bureau Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 11. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return receipt requested, to Graytop Cab, Inc., 3450 16th Avenue West, Seattle, Washington 98119. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau