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Federal Communications Commission
Washington, D.C. 20554
In the matter of ) File No. EB-02-PA-275
Horizon Communications ) NAL/Acct. No. 200332400002
WPMM811 and WPMT622 )
Cliffside Park, New Jersey ) FRN: 0003-4622-31
Adopted: November 9, 2004 Released: November 15,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Horizon Communications (``Horizon'') for willful and
repeated violation of Sections 1.903(a) and 90.425(a) of the
Commission's Rules (``Rules'').1 The noted violations involve
Horizon's operations at an unauthorized location and failure to
transmit the call sign identification on its stations WPMM811 and
2. On December 5, 2002, the Commission's
Philadelphia, Pennsylvania District Office (``Philadelphia
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'') to Horizon for a forfeiture in the amount of ten
thousand dollars ($10,000).2 Horizon filed a response to the NAL
on January 6, 2003.3
3. On July 17, 2002, the Philadelphia Office received
a complaint of interference on 452.725 MHz from Westchester
County (``Westchester''), licensee of station WQR630.4 On July
29, agents from the Philadelphia Office and the Commission's New
York, New York District Office (``New York Office'') determined
that Horizon was operating on co-channel frequency 452.725 MHz by
providing radio communication services to Eastland Car Service, a
taxi company, on a transmitter located at the Cadman Towers, 101
Clark Street, Manhattan, New York. In connection with this
investigation, the agents further discovered that Horizon was
providing service to Lower Eastside Car Service on 462.200 MHz at
the same location. At the time of the investigation, Horizon was
authorized to operate station WPMM811 on the frequency 452.725
MHz at 195 First Street, Newark, New Jersey and station WPMT622
on the frequency 462.200 MHz at 1500 Palisade Avenue, Fort Lee,
New Jersey. Horizon is licensed under Part 90 of the Rules and
has a location-specific license, rather than a license for a
4. Also on July 29, 2002, the Philadelphia Office and
New York Office agents monitored Horizon's radio transmissions on
452.725 MHz and 462.200 MHz. During that period, the agents
observed that no call signs were transmitted on the stations.
Employees of both of the taxi companies using Horizon's
frequencies, Eastland Car Service operating on 452.725 MHz
(WPMM811), and Lower Eastside Car Service operating on 462.200
MHz (WPMT622), confirmed to the agents that neither station
transmitted call sign identification.
5. On August 5, 2002, the Philadelphia Office issued
a Notice of Violation (``NOV'') to Horizon for operating stations
WPMM811 and WPMT622 at an unauthorized location, in violation of
Section 1.903(a) of the Rules, and for failure to transmit call
sign identification for stations WPMM811 and WPMT622, in
violation of Section 90.425(a) of the Rules. Horizon responded
to the NOV on August 14, 2002, stating that it had contacted
Westchester County to discuss reducing their co-channel
interference and that Horizon would shift its antenna and lower
output power. In its response, Horizon effectively conceded that
it was not transmitting its call sign for either station, stating
that it would program Lower Eastside's station once it received a
temporary authorization, and that an external identifier would
have to be put onto the Eastland Car Service transmitter.5
Horizon further stated that it had submitted an application for
Eastland Car Service to operate on 452.725 MHz, and another
application for Lower Eastside Car Service to operate on 462.200
6. On December 5, 2002, the District Director of the
Philadelphia Office issued the subject NAL to Horizon for its
operations at an unauthorized location and its failure to
transmit the call sign identification on its stations in willful
and repeated violation of Sections 1.903(a) and 90.425(a) of the
Rules. In its response, Horizon admits that it relocated the
stations but avers that Westchester was not receiving ``harmful''
interference, and that the move was intended to test a new
coverage area that was intended to reduce the possibility of co-
channel interference. Therefore, Horizon argues, the move was
not a ``conscious and deliberate'' attempt to violate the
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),6 Section 1.80 of the Rules,7
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 Horizon'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
such other matters as justice may require.8
8. Section 1.903(a) of the Rules states that a
station in the Wireless Radio Services may only be used and
operated in accordance with the rules applicable to its
particular service, and only with a valid authorization. Horizon
admits that it moved its stations from its licensed locations in
June 2002 without authorization.9 Its stated reasons for moving
the stations, that it wanted to test an alternate location to
minimize interference to co-channel and adjacent channel
licensees,10 is not an exception permitted in our rules.
Moreover, Horizon does not provide proof of any efforts it made
to coordinate with co-channel or adjacent channel licensees, or
that it followed the Commission's frequency coordination
requirements. Indeed it would have been impossible for any other
licensee to contact Horizon to coordinate regarding increased
interference, since Horizon was not broadcasting its call sign or
any other contact information.11
9. Horizon also argues that even if it was
interfering with Westchester's operations, Westchester was not
entitled to protection from interference because the frequencies
are shared.12 The question presented here, however, is not
whether Westchester has grounds to complain of interference, but
whether Horizon had authority to operate Stations WPMM811 and
WPMT622 at Camden Towers rather than at their respective
authorized locations. The complaint was simply the impetus for
an investigation by the Philadelphia Office and New York Office
10. Horizon argues that the new location was within
the contours of the authorized locations for each station. We
conclude that this argument is without merit. Horizon's
relocation of its transmitters constitutes a major modification
of its station license under the applicable rules.13 A major
modification of a station license requires prior Commission
authorization.14 Accordingly, Horizon had no color of authority
to relocate Stations WPMM811 and WPMT622. Moreover, Horizon's
license did not include a service area bound by contours
delineated by a specific signal strength. Horizon is licensed
for a specific transmitter location only, with no accompanying
11. Section 90.425(a) of the Rules requires stations
licensed under Part 90 of the Rules to transmit the station's
call sign during each transmission or once each 15 minutes during
periods of continuous operation. Horizon acknowledges that it
had not programmed Stations WPMM811 and WPMT622 to transmit their
call signs.15 It states that it was planning to program the new
call signs for the taxi companies when its tests were completed.
Complete station relocation lasting more than a month and
comprising full operational use by taxi companies is in our
judgment not merely a ``test'' and in any event is not exempt
from Section 90.425(a) of the Rules.
12. Horizon argues that its actions do not rise to the
level of culpability of certain other forfeiture cases. Horizon
states that ``[i]n other forfeiture cases where the station was
relocated, the licensee was fined an equal amount to Horizon.
However, in each of those cases, the stations were relocated
outside of the licensed interference contour, and the stations
were not relocated with the intention of resolving an
interference concern.'' 16 We are not persuaded by this
argument.17 We find that the cases Horizon cites do not provide
support for a reduction in the forfeiture amount. We believe
from a comparison standpoint the fact that Horizon is licensed
for a specific transmitter location with no accompanying service
area, its unauthorized relocation, at a minimum, is no less
significant of a violation than that of a licensee who has
relocated outside of its licensed interference contour. We
therefore find the forfeiture amount proposed in the NAL to be
13. In Graytop Cab, Inc.,18 which Horizon claims was a
more serious violation than here, the former Field Operations
Bureau assessed a forfeiture of $4000 upon a finding that the
licensee was operating a transmitter at an unauthorized location
for the purpose of testing. Horizon also is claiming to have
moved its transmitter for the purpose of testing, as in Graytop
Cab, Inc. We find Horizon's violation to be as serious as that
in Graytop Cab, Inc., however, because of the nature of Horizon's
license, coupled with the fact that it was not merely testing but
had transferred all equipment and all full-time operations of two
stations to the unauthorized location, and was not transmitting
its call signs. Accordingly, Graytop Cab, Inc. is not analogous
to the instant case.
14. In Arvada Excavating Company,19 which Horizon also
claims was a more serious violation than here, the licensee had a
geographic license rather than a site-based license, as does
Horizon. Thus, the two situations are inapposite. Arvada, as a
geographic licensee in the Trunked Business Service, has
authority to place control transmitters at will within its
geographic area, so long as it notifies the Commission.20 Thus,
Arvada was entitled to move a transmitter location within its
service area but had failed to notify the Commission of the new
location. In the instant case, as discussed above, Horizon
requires prior Commission approval and prior coordination to
relocate its transmitter. Moreover, as discussed above,
Horizon's license did not include a service area bound by
contours delineated by a specific signal strength. Accordingly,
we find that Horizon's violation is worse than that in Arvada.
15. In Colorado Small Business Development
Association, Inc., the licensees to whom a forfeiture was issued
were also geographic licensees. The licensees were assessed a
forfeiture of $10,000 and $12,000 respectively, and did not
contest the violation or the forfeiture amount.21 Once again,
we find that this decision does not support Horizon's arguments.
16. Finally, Horizon contends that it has acted in
good faith because it was attempting to more effectively utilize
crowded spectrum and because it has at all times cooperated with
Commission employees in resolving problems. No reduction of the
forfeiture for good faith is appropriate for these actions under
Section 1.80 of the Rules. Horizon intentionally relocated two
stations without authorization and without broadcasting the call
signs so that affected parties could contact it. As noted
above,22 Horizon has provided no persuasive evidence that its
actions were taken in good faith to reduce spectrum congestion.
Moreover, Horizon is obligated to respond to Commission
communications regarding rule violations.23 The Commission does
not award a downward reduction under these circumstances.24
Horizon does not offer any support for its contention to the
17. We agree with Horizon that the Commission has
recognized it should not merely multiply the number of repeaters
for each violation in assessing a forfeiture amount.25 We
disagree, however, with Horizon's characterization of the
transmitters for Stations WPMM811 and WPMT622 as ``repeaters.''26
The Commission takes into account numerous factors in determining
the appropriate forfeiture in any given situation. As we have
discussed herein, we find no mitigating circumstances in
determining the forfeiture amount we assess Horizon. Horizon
relocated two licensed stations without Commission authority and
without broadcasting their call sign so that other parties could
identify the signal. Thus, the forfeiture amount reflects the
amount for each of the two violations and not simply a multiple.
Moreover, Horizon, unlike the licensee in CIPS, did not bring the
violation to the Commission's attention.
18. We have examined Horizon's response pursuant to
the statutory factors above, and in conjunction with the Policy
Statement as well. As a result of our review, we conclude that
Horizon's violation of Sections 1.903(a) and 90.425(a) of the
Rules is willful27 and repeated28 and find that no reduction of
the monetary forfeiture assessed in the Forfeiture Order is
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,29 Horizon Communications IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for its willful and repeated violation of Sections
1.903(a) and 90.425(a) of the Commission's Rules.
20. 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.30 Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
21. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Horizon Communications, P.O. Box 387, Cliffside
Park, New Jersey 07010, and to its counsel Alan S. Tilles, Esq.,
Shulman, Rogers, Gandal, Pordy & Ecker, P.A., 11921 Rockville
Pike, Third Floor, Rockville, Maryland 20852.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. §§ 1.903(a) and 90.425(a).
2 Notice of Apparent Liability for Forfeiture, File No. EB-02-PA-
275, NAL/Acct. No. 200332400002 (released December 5, 2002).
3 Horizon's response was styled ``Petition for Reconsideration.''
We will consider Horizon's petition as a response to the NAL
pursuant to 47 C.F.R. § 1.80(f)(3) (hereinafter ``Response''). An
opportunity to file a petition for reconsideration after issuance
of this Order is provided pursuant to 47 C.F.R. 1.80(i).
4 The NAL contained a typographical error, identifying
Westchester's station as ``WQR620.'' Commission records indicate
that WQR630 is the correct call sign.
5 In its reply to the Notice of Violation, Horizon stated that
Eastland Car Service would have an external transmitter put on
frequency ``452.275 MHz.'' We conclude that this was a
typographical error, and Horizon meant to state 452.725 MHz.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Response at 1.
10 Response at 3.
11 The Commission has put in place a coordination procedure for
stations in the Private Radio Services and requires applicants
and licensees to make use of it. See 47 C.F.R. § 90.35(b)(2).
12 Response at 3.
13 See 47 C.F.R. § 1.929(c)(4)(v). Horizon references 47 C.F.R.
§ 90.693(b), which states that for licensees in the 800 MHz band,
moving a transmitter within the station's service area contours
is a minor modification that does not require an application or
Commission authorization in advance. Horizon is licensed in the
450 and 460 MHz bands.
14 Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22,
24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's rules
to Facilitate the Development and Use of the Universal Licensing
System in the Wireless Telecommunications Services, 13 FCC Rcd.
21027, 21059 (1998) (``There are numerous instances in which an
application could significantly affect other licensees on a
shared frequency, and should therefore be considered major. We
will therefore apply our major change rule to both exclusive and
shared frequencies as proposed.'')
15 Response at 6.
16 Horizon's Response at 5.
17 As noted above, we are not persuaded that Horizon's
unauthorized relocation was in fact within its contour area. See
¶ 10, supra. Additionally, Horizon has provided no persuasive
evidence that it was acting in good faith to reduce interference
concerns. See ¶ 8, supra.
18 1999 WL 528263; DA 99-1456, released July 26, 1999 (Dir.,
Legal Svcs Group CIB) (``Graytop Cab.'')
19 15 FCC Rcd 13590 (Enf. Bureau 2000) (``Arvada.'')
20 47 C.F.R. § 90.135
21 15 FCC Rcd. 5811 (Enf. Bureau 2000), recon denied 15 FCC Rcd.
24314 (2000) (``Colorado Small Business Development.'')
22 See ¶ 8, supra.
23 See 47 C.F.R. § 1.951.
24 Policy Statement; 47 C.F.R. § 1.80.
25 See Central Illinois Public Service Company, 15 FCC Rcd 1750
26 Horizon's Response at 5.
27 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
28 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term `repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than
one day.'' 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). Southern California Broadcasting Co., supra.
29 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
30 47 U.S.C. § 504(a).
31 See 47 C.F.R. § 1.1914.