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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 & LIMOUSINE SERVICE Application for Renewal of License of Business Radio Station WNDV558, Brooklyn, New York Application for Modification of License of Business Radio Station License WNDV558, Brooklyn, New York ) ) ) ) ) ) ) ) ) ) ) File No. R336667 File No. D98730 MEMORANDUM OPINION AND ORDER Adopted: January 13, 2000 Released: January 14, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we grant Battery City Car & Limousine Service ("Battery") a short-term renewal until December 31, 2002, with reporting conditions, of the license for Business Radio Station WNDV558, Brooklyn, New York. As discussed below, we believe a short-term renewal with conditions is necessary in order to ensure that Battery complies with the limits on the number of mobile units with which it is authorized to operate on 808.7375 MHz. In a related action, we also dismiss as procedurally defective a "Petition to Deny" against Battery's renewal application, filed on August 7, 1998, by Tel-A-Car of New York, Inc. ("Tel- A-Car"). II. BACKGROUND 2. Battery operates a limousine business in the New York City area. In connection with this business, Battery holds a license for Station WNDV558 over which Battery's office communicates with its vehicles. Battery's license for Station WNDV558 authorizes the use of a maximum of 17 mobile units on the frequency 808.7375 MHz. Tel-A-Car also operates a limousine business in the New York City area and is a competitor of Battery. In connection with its business, Tel-A-Car holds a license for Station WYQ527. The Battery and Tel-A-Car stations share the frequency pair 808.7375 MHz (mobile)/853.7375 MHz (base). 3. On March 25, 1997, Tel-A-Car filed a complaint with the Commission1 Tel-A-Car alleged in the complaint that Battery was disrupting its communications by operating in excess of its 17 authorized mobile units on frequency 808.7375 MHz and by failing to monitor the frequency before transmitting. The former Compliance and Information Bureau ("CIB") conducted an investigation, and, on April 16, 1997, issued a written warning to Battery that it had observed the following apparent violations: operating in excess of the 17 authorized mobile units on frequency 808.7375 MHz, in apparent violation of 90.403(a) of the Commission's Rules2 failing to monitor before transmitting over Station WNDV558, in apparent violation of 90.403(e) of the Commission's Rules3 and failing to provide station identification, in apparent violation of Section 90.425(a4 of the Commission's Rules5 4. Tel-A-Car subsequently filed a further informal complaint on June 22, 1998, alleging that Battery was continuing to operate in excess of 17 mobile units on the frequency 808.7375 MHz and failing to monitor before transmitting6 As a result of this further complaint, the Wireless Telecommunications Bureau ("WTB") commenced a new investigation into Battery' s compliance with the Commission's rules. At WTB's request, staff of the former CIB monitored Battery's operations over Station WNDV558 in July 1998. The CIB's monitoring revealed communications on the frequencies 808.7375 MHz (mobile7 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 p.m. and 9:34 p.m. on July 29, 1998. 5. On August 31, 1998, the WTB issued a Notice of Apparent Liability for Forfeiture ("NAL"8 in the amount of $20,000 to Battery on the basis of the monitoring that had been conducted on July 13, 16, 28 and 29, 1998. The NAL concluded that, on those dates, Battery had operated more than 17 mobile units on the frequency 808.7375 MHz, in apparent violation of Sections 90.113 and 90.135(a)(5) of the Commission's Rule9 and had not identified its communications, an apparent violation of Section 90.425(a) of the Commission's Rules10 Battery filed a timely response to the NAL in which it sought reduction or rescission of the proposed forfeiture. On December 23, 1998, the WTB issued a Memorandum Opinion and Orde11 rejecting Battery's request for reduction or rescission of the proposed forfeiture, and ordering Battery to forfeit $20,000 for having violated Sections 90.113, 90.135(a)(5) and 90.425(a) of the Commission's Rules12 On January 22, 1999, Battery filed an application for review of the Forfeiture Order. 6. On May 3 and 4, 1999, personnel of the former CIB again monitored Battery's communications over Station WNDV558. On each of those dates, Battery was observed to be transmitting unidentified communications and operating on frequencies 808.7375 MHz (mobile) and 853.7375 MHz (base) with approximately 100 mobile units. 7. On June 9, 1999, Tel-A-Car filed a new complaint alleging that Battery was continuing to disrupt its communications by operating more than the 17 mobile units authorized by its license and was failing to monitor before transmitting13 By letter dated June 18, 199914 the WTB directed Battery to respond to Tel-A- Car's complaint and to furnish the following specific information: (1) All dates (if any) since January 1, 1999, on which Battery has operated more than seventeen mobile units on frequency pair 853.7375/808.7375 MHz. (2) If there are any dates since January 1, 1999, on which Battery has operated on more than seventeen mobile units on frequency pair 853.7375/808.7375 MHz, a full and complete explanation of its basis for believing it has authority to operate in that manner. In its response dated July 12, 1999, Battery claimed to have no "knowledge of the particular transmissions of which Tel-A-Car is complaining." It did not furnish the specific information requested by the Bureau's letter of June 18,199915 8. The WTB sent a follow-up letter of inquiry, dated August 2, 1999, to Battery, pursuant to Section 308(b) of the Act16 In that letter, the Bureau again directed Battery to furnish the information that the Bureau had initially sought in its June 18, 1999, correspondence17 Battery responded to the follow-up letter of inquiry on August 16, 1999.18 In its response, Battery stated: Battery City [h]as no records of any time when more than 17 mobile units were operating on the subject frequency pair, including the period of January 1, 1999, to the present [footnote omitted]. Battery City does not keep daily logs of transmissions made over the subject frequency pair, and therefore it cannot state for certain how many mobiles were in operation on that frequency pair on a given day, particularly on a day in January, more than seven months ago. Battery City always endeavors to operate in compliance with the Commission's rules [footnote omitted], but those rules do not require Battery City to keep a daily record of its transmissions. On August 11, 1999, the Commission denied Battery's application for review of the Forfeiture Order19 On December 9, 1999, the Commission dismissed Battery's petition for reconsideration of the August 11, 1999, action20 III. DISCUSSION 9. Initially, we dismiss Tel-A-Car's "Petition to Deny" as procedurally defective. The Commission's Rules do not contemplate the filing of petitions to deny against applications for renewal of stations in the private wireless services, including Battery's Business Radio Station21 Tel-A-Car's informal complaint alleges the same sort of violations alleged in its earlier petition. The action we take in this order is designed to ensure that Battery's future operations are in full compliance with the Commission's Rules and the terms of its authorization. Accordingly, we will informally consider Tel-A-Car's allegations in reaching our decision in this matter. 10. The results of the former CIB's monitoring shows that Battery apparently continues to operate on 808.7375 MHz with more mobiles than the number authorized under its license, even after a warning in 1997 and the imposition of a substantial forfeiture in 1998. Furthermore, based upon Battery's response to the WTB's most recent letter of inquiry, it appears that Battery is not undertaking adequate measures to ensure that it complies with the limits on the number of mobiles it is authorized to use. As a result, we conclude that additional enforcement oversight is necessary to ensure Battery's compliance with the Commission's Rules and the terms of its license. 11. In this instance, we believe a short-term renewal with reporting conditions is the appropriate remedy to ensure Battery's compliance with the Commission's rules. We will not designate Battery's renewal application for hearing at this time. The fundamental test for determining whether a licensee has the character qualifications necessary to remain a Commission licensee is whether it "can be expected to be honest in its dealings with the Commission and can also be expected 'to operate the station' consistent with the requirements of the Communications Act and the Commission's rules and policies."22 We conclude there is no substantial or material question of fact as to whether Battery has misrepresented facts or lacked candor with the Commission. Moreover, with appropriate conditions, we believe we can ensure that Battery comes into compliance with the Commission's rules. We believe that a short-term renewal will afford us an opportunity "to review [Battery's] reliability after a reasonable period."23 Short-term renewal "is appropriate when the purpose is to test future compliance with FCC operating requirements . . . ."24 As a condition of renewing Battery's license, we will require Battery to file reports with the WTB Public Safety and Private Wireless Division's Licensing and Technical Analysis Branch every six months relating to its compliance with the limits on its authorized mobile count. In those reports, Battery will be required to describe in detail the efforts it is taking to monitor its compliance with the terms of its license, identify all instance in which it operated more than 17 mobiles in any given day, and explain the circumstances behind any such violations. We expect that Battery will take whatever steps are necessary to ensure full compliance with the terms of its authorization. 12. Finally, we note that in the forfeiture proceeding, Battery has repeatedly raised arguments concerning the return of an application it filed in 1989 to increase its mobile count. The Commission has ruled that Battery's arguments concerning action on that application are untimely25 If Battery believes its communications needs require it to be licensed for more than 17 mobile units on 808.7375 MHz, Battery must apply for and receive authorization to operate more mobile units on that channel26 If Battery continues to operate with more mobile units than is authorized under its license, such conduct will call into grave question its qualifications to remain an FCC licensee. 13. We have reviewed Battery's application to modify its license and determined that the application is grantable. In light of our determination to grant a short-term renewal to Battery, we also grant Battery's modification application. IV. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that the application filed by Battery City Car and Limousine Service, Inc. to modify the facilities of Business Radio Station WNDV558 (File No. D98730) IS GRANTED. 15. IT IS FURTHER ORDERED that the Petition to Deny filed by Tel-A-Car of New York, Inc. on August 7, 1998, IS DISMISSED. 16. IT IS FURTHER ORDERED that the captioned application for renewal of license of Business Radio Station WNDV558, Brooklyn, New York, filed by Battery City Car & Limousine Service IS GRANTED FOR A SHORT TERM ending December 31, 2002, subject to the reporting conditions specified herein. 17. IT IS FURTHER ORDERED that Battery City Car & Limousine Service, licensee of Business Radio Station WNDV558, Brooklyn, New York, on June 1, 2000; December 1, 2000; June 1, 2001; December 31, 2001; June 1, 2002; and December 31, 2002, SHALL FILE with the Licensing and Technical Analysis Branch of the Public Safety and Private Wireless Division of the Wireless Telecommunications Bureau written reports containing the following information: (a) a detailed description of the steps Battery took during the previous six-month period to ensure compliance with its authorized mobile count on the 88.7375 MHz frequency. (b) a list of all days during the previous six-month period on which Battery exceeded its authorized mobile count on 808.7375 MHz, and a complete explanation of the circumstances surrounding Battery's use of excess mobiles. (c) a declaration, under penalty of perjury, by an officer or director of Battery that the information contained in the report is true and correct. 18. 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 D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau