******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 3, 1999 Released: December 9, 1999 By the Commission: 1. In this order, we dismiss a "Petition for Reconsideration" filed on September 10, 1999 by Battery City Car and Limousine Service, Inc. ("Battery"), licensee of Business Radio Station WNDV558, Brooklyn, New York. Battery seeks reconsideration of our Memorandum Opinion and Order, FCC 99- 212 (released August 11, 1999) (MO&O) affirming the Wireless Telecommunications Bureau order imposing a $20,000 forfeiture against Battery for violations of Sections 90.113, 90.135(a)(5), and 90.425(a) of the Commission's Rules. For the reasons that follow, we dismiss Battery's petition as procedurally defective. We also discuss the standard applicable to determining when a licensee is operating more mobiles than authorized under its license. 2. Section 1.106(b)(2) of the Commission's Rules provides: Where the Commission has denied an application for review, a petition for reconsideration will be entertained only if one or more of the following circumstances are present: (i) The petition relies on facts which relates to events which have occurred or circumstances which have changed since the last opportunity to present such matters; or (ii) The petition relies on facts unknown to petitioner until after his last opportunity to present such matters which could not, through the exercise of ordinary diligence, have been learned prior to such opportunity. A review of Battery's petition shows that, with one exception, Battery does not present any new facts or changed circumstances in its petition. Instead, Battery simply reargues matters that the Commission previously considered and rejected in ruling on Battery's application for review. In particular, we note that, while Battery argues at length that the former Private Radio Bureau erred in returning Battery's 1989 application to increase its mobile count, we ruled in our prior order that Battery's arguments were untimely because it never filed a timely petition for reconsideration or application for review of the Private Radio Bureau's action. We also held that, even if the dismissal of Battery's application was erroneous, such error would not excuse its deliberate decision to operate contrary to the terms of its license. The Commission does not grant reconsideration simply for the purpose of reviewing matters that it has already considered and resolved. 3. The one new fact Battery offers in its petition for reconsideration is a financial statement as of July 31, 1998. Battery offers the financial statement in support of an argument that the forfeiture should be reduced because it will cause severe financial hardship and affect Battery's ability to serve the public. We will not consider this information at this time because Battery did not make this argument to the Bureau, although it had every opportunity to do so. The argument does not comply with Section 1.106(b)(2) of the Commission's Rules because Battery could have presented this information and argument to the Bureau. Accordingly, we will dismiss Battery's petition for reconsideration pursuant to Section 1.106(b)(3) of the Commission's Rules. 4. Finally, we take this opportunity to discuss the standard applicable to determining when a licensee is operating more mobiles than authorized under its license. On April 16, 1997, the District Director, New York Field Office informed Battery that "the number of mobile units using the frequency 853.7375 MHz, on any given day, may not exceed the licensed value of 17." We agree that, for purposes of determining whether a land mobile licensee is operating with more than the number of mobile units authorized under its license, the test is whether the licensee is operating more units on a given day than the number authorized by its license. We believe this standard is reasonable and gives licensees sufficient flexibility to conduct their operations. 5. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 1.106(b)(3) of the Commission's Rules, the "Petition for Reconsideration" filed by Battery City Car & Limousine Service, Inc. on September 10, 1999 IS DISMISSED. 6. 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. 7. 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 counsel for Tel-A- Car, 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