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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: August 6, 1999 Released: August 11, 1999 By the Commission: I. INTRODUCTION 1. In this order, we address the following items: (a) a Memorandum Opinion and Order imposing a forfeiture in the amount of $20,000 against Battery City Car and Limousine Service, Inc. ("Battery"), licensee of Business Radio Station WNDV558, Brooklyn, New York; (b) an "Application for Review" of the Forfeiture Order, filed January 22, 1999 by Battery; (c) an "Opposition" to the Application for Review, filed February 8, 1999 by Tel-A-Car of New York, Inc. (Tel-A-Car); and (d) a "Reply to Opposition to Application for Review," filed February 18, 1999 by Battery. The Forfeiture Order imposed an $18,000 forfeiture against Battery because Battery was operating Business Radio Station WNDV558 with more than the authorized 17 mobile units on the frequency 808.7375 MHz, in violation of Sections 90.113 and/or 90.135(a)(5) of the Commission's Rules. The Forfeiture Order also imposed a $2,000 forfeiture because Battery failed to identify Station WNDV558, in violation of Section 90.425(a) of the Commission's Rules. Battery requests that we cancel or reduce 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's operations on the same frequency as Battery. For the reasons that follow, we dismiss Battery's arguments with respect to the 1989 application and with respect to the allegations that Tel-A-Car violated the ex parte rules. We deny its application for review in all other respects and affirm the decision to impose a total forfeiture of $20,000 against Battery. 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. 4. On August 31, 1998, the Chief, Wireless Telecommunications Bureau issued a Notice of Apparent Liability that found Battery apparently liable for a total forfeiture of $20,000. On September 30, 1998, Battery filed a response (erroneously styled as a petition for reconsideration) to the NAL. In its response, Battery did not deny that it operated more than 17 mobiles on 808.8375 MHz. Instead, it argued that the Bureau erred by failing to grant an application Battery had filed in 1989 to increase its mobile count. It also argued that Battery had been subject to disparate treatment vis-a-vis Tel-A-Car and that the Private Radio Bureau's ruling in 1989 requiring Battery to obtain Tel-A-Car's consent to an increase in Battery's mobile count was an improper new substantive rule. With respect to the forfeiture for operating more mobiles than allowed under its license, Battery argued that the forfeiture should be rescinded because Battery has been treated inconsistently vis-a-vis Tel-A-Car and, alternatively, that the forfeiture was excessive in light of precedent. With respect to the forfeiture for failing to identify its station, Battery argued that a forfeiture was excessive and that the Commission had not taken action against Tel-A-Car for the same offense. Battery supplemented its response on November 19, 1998, to argue that documents it had received under the Freedom of Information Act bolstered its arguments that Battery "has operated at all times in good faith compliance with the FCC's Rules" and that Battery had been treated unfairly in comparison to Tel-A-Car. 5. On November 17, 1998, Battery wrote a complaint to the Commission's Office of General Counsel (which was not served upon the Bureau) alleging, inter alia, that Tel-A-Car had violated the ex parte rules by submitting complaints concerning Battery to the Commission without serving Battery. By letter dated March 22, 1999, the Office of General Counsel concluded that Battery had not established any violation of the ex parte rules by either Tel-A-Car or the Bureau. Battery did not seek review of that ruling. 6. On December 23, 1998, the Bureau issued the subject Forfeiture Order. In that order, the Bureau rejected Battery's arguments and imposed a $20,000 forfeiture. The Bureau noted that Battery had not denied operating with more than 17 mobile units and that Battery had not explained how its returned 1989 application gave it authority to operate more than 17 mobile units. The Bureau noted that Battery made a conscious decision in 1989 not to seek reconsideration of the return of the 1989 application and ruled that its current arguments challenging that ruling were grossly untimely. The Bureau also rejected Battery's arguments that the $18,000 forfeiture for operating with more mobiles than authorized under its license was excessive and that Battery had been treated unfairly in comparison to Tel-A-Car. Finally, the Bureau decided that a $2,000 forfeiture against Battery for failing to identify its station was appropriate because Battery had previously been warned for failing to identify its station and Battery had not kept its commitment to comply with that rule. III. DISCUSSION 7. Battery's Application for Review makes four arguments. First, Battery repeats its argument that the forfeiture for operating excessive mobiles is inequitable and excessive in light of precedent. Second, Battery argues that the forfeiture for failing to identify its station is excessive. Third, Battery argues that it has been "wrongfully prevented" from obtaining authorization to increase its mobile count and that the Private Radio Bureau's decision in 1989 to require Tel-A-Car's consent to an increase in Battery's authorized mobiles was an improper new substantive rule. Finally, Battery argues that the Bureau has violated administrative due process by treating Tel-A-Car more favorably than Battery and by violating the ex parte rules in communications with Tel-A-Car. We address each of these arguments below. A. Use of Unauthorized Mobile Units 8. 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. 9. In its application for review, Battery does not deny the essential facts that establish a violation of those rules. Under the terms of its license, Battery is only authorized to operate 17 mobile units. Battery was warned in 1997 for its failure to comply with that restriction, and it promised that it would comply with those restrictions in the future. Notwithstanding that promise, on four occasions in 1998, Battery was found operating far more than 17 mobile units on the frequency. Under those circumstances, we agree with the Bureau 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. 10. Battery first complains that "the Bureau has steadfastly refused to consider any allegations of wrongdoing against [Tel-A-Car] to date." We reject that argument. The Bureau has taken enforcement action against Tel-A-Car when warranted. On September 10, 1998, Tel-A-Car was admonished by the Bureau for failing to identify its station. 11. Moreover, Battery's situation and Tel-A-Car's situation are distinguishable. When Battery was found to have violated our rules in 1997, it promised to comply with those rules and specifically represented that it would ensure future compliance with its authorized mobile count. We are concerned that despite that representation, Battery knowingly continued to operate with more than 17 mobiles. Under those circumstances, we believe a substantial forfeiture is appropriate in order to punish Battery's continuing misconduct. We will not tolerate such repeated violations by a licensee. 12. Battery argues that the Bureau's decision to impose a $18,000 forfeiture is inconsistent with precedent. Battery argues that its case should be treated similarly to cases in which forfeitures of $1,000 were issued for failing to file FCC Form 489s, and it complains that the $18,000 forfeiture is higher than in certain cases where forfeitures were issued for interference or operating without a license. Battery's argument must be rejected because it ignores the special circumstances in this case which justify an $18,000 forfeiture. None of the cases Battery cites involved a licensee who violated a rule, promised to comply with that rule, and then was found in subsequent violation. Congress has recognized that forfeitures must be "sufficiently high to deter violations and constitute a meaningful sanction when violations occur." The Forfeiture Policy Statement provides that forfeitures can be adjusted upward from the base amount when there are intentional violations, prior violations of any FCC requirements, and repeated or continuous violations. In this case, each of these upward adjustment factors is present. In light of the prior warning Battery received, we conclude that their decision to operate more than 17 mobile units must be considered an intentional violation. In the unusual case where a licensee continues to intentionally violate a rule after it has been found violating that rule previously, it is entirely appropriate to issue forfeitures substantially above the base amount because a larger forfeiture is needed in order to deter additional misconduct and to ensure that the licensee considers the sanction to be meaningful. In light of those principles, we agree with the Bureau's decision to impose an $18,000 forfeiture. B. Failure to Identify Station 13. Battery does not deny that it violated Section 90.425(a) of the Commission's Rules by failing to identify its station on the four occasions monitored by the Commission. Instead, it argued that a forfeiture was "excessive" and that the Bureau failed to engage in the analysis required by Section 503 of the Act in deciding to impose a $2,000 forfeiture for this violation. We reject Battery's arguments. The Bureau correctly noted, "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, Battery mischaracterizes the Bureau's reasoning when it claims that the Bureau merely relied upon the fact that the violation was "repeated" in imposing a $2,000 forfeiture. Under Section 503(b)(2)(D) of the Act, the Commission is required to consider "any history of prior offenses." In this case, Battery had previously violated the rule and had promised to comply with the station identification rule. Notwithstanding that promise, it then violated the rule again. We believe the Bureau was clearly justified in doubling the base amount of the forfeiture based upon those facts. Furthermore, Battery's allegation that there is no precedent for a forfeiture for failing to identify a private land mobile station does not persuade us that a forfeiture is inappropriate in this case. Even assuming that a forfeiture would not be the usual enforcement action taken for a first-time violation of this type, we believe a forfeiture is entirely appropriate when a licensee that has previously violated a rule receives a warning, promises to comply with that rule and subsequently violates the same rule. The Commission and its staff must have the discretion needed to take the level of enforcement action needed to deter violations of our rules and ensure future compliance by our licensees. Accordingly, we affirm the Bureau's decision to impose a $2,000 forfeiture against Battery for violation of Section 90.425(a) of the Commission's Rules. C. Battery's Modification Application 14. We will not consider herein Battery's arguments that the former Private Radio Bureau erred in failing to grant Battery's 1989 application to increase its mobile count. We agree with the Bureau that Battery's arguments in this regard are grossly untimely. If Battery believed it was aggrieved by the return of its application and the requirement to obtain Tel-A-Car's consent, it should have availed itself of the right to file a petition for reconsideration within thirty days of the Commission action dismissing the application. Instead, 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. Pursuant to Section 405 of the Communications Act, a petition for reconsideration of a Commission action must be filed within 30 days of public notice of that action. Accordingly, we will dismiss that portion of Battery's application for review that seeks to revisit -- some ten years later -- the dismissal of its application. 15. Moreover, even if Battery's 1989 application had been improperly returned, we agree with the Bureau that those circumstances cannot excuse or mitigate Battery's deliberate refusal to comply with the terms of its license. As the Bureau noted, "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." Indeed, Battery's counsel told the Commission, "it is understood that Battery City has no authority to operate more than 17 units on that frequency until the FCC resolves this matter . . . ." In light of that understanding, Battery's repeated use of more than 17 mobile units appears to be a conscious decision to flout the Commission's Rules. We will not tolerate such conduct. D. Ex Parte Allegations 16. The portion of Battery's application for review dealing with alleged violations of the ex parte rules will be dismissed as moot. On March 22, 1999, the Office of General Counsel concluded that Battery had not established any violation of the ex parte rules by either Tel-A-Car or the Bureau. Battery did not seek review or reconsideration of that ruling. Accordingly, we will not consider Battery's arguments in this regard. IV. Conclusion and Ordering Clauses 17. For the reasons stated above, we affirm the Bureau's decision to impose a $20,000 forfeiture order against Battery. We reject Battery's arguments concerning the propriety of the forfeiture and dismiss its arguments with respect to its 1989 application and its allegations concerning the ex parte rules. 18. ACCORDINGLY, IT IS ORDERED that the "Application for Review" filed by Battery City Car & Limousine Service, Inc. on January 22, 1999 IS DISMISSED to the extent Battery raises arguments concerning its returned 1989 application and alleged violations of the ex parte rules, and is otherwise DENIED. 19 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. 20. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order shall be 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, and to Tel-A-Car's counsel, Thomas K. Crowe, Esq., Law Offices of Thomas K. Crowe, P.C., 2300 M Street, N.W., Suite 800, Washington, DC 20037. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary