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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number: EB-06-NY-047
Discovery Transportation )
NAL/Acct. No: 200732380008
Licensee of WQCK981 )
FRN: 0014 6150 58
New York, NY )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 26, 2007
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Discovery Transportation ("Discovery"), licensee of private land
mobile station WQCK981, in New York, NY, apparently willfully and
repeatedly violated Section 1.903(a) of the Commission's Rules
("Rules") by operating radio transmitting equipment on the frequency
463.350 MHz from an unauthorized location with an antenna that
exceeded the authorized height. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Discovery is apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000). We also admonish Discovery for failing to
transmit its call sign identification at least once every fifteen
minutes, as required by 90.425(a) of the Rules.
II. BACKGROUND
2. On February 22, 2006, the FCC New York Office received a complaint of
interference from Kings County Hospital, licensee of private land
mobile station WNUR820 in New York City, regarding interference it was
receiving on the frequency 463.350 MHz.
3. On February 24, 25, and 27, 2006, Commission agents monitored the
frequency 463.350 MHz and heard transmissions related to a car service
operation in the New York City area. The station did not transmit its
call sign identification during any of the transmissions that agents
monitored on those dates.
4. On February 28, 2006, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 463.350 MHz in New
York City and determined that the transmissions were coming from 70
West 93^rd Street, New York, NY 10025. The agents heard the same car
service dispatcher whom they had heard on February 24, 25, and 27,
2006. Based on a pick-up location announced by the dispatcher, an
agent met one of the car service company's cars at the pick-up
location and interviewed the driver. The driver stated the he worked
for Discovery. The agent called Discovery and asked the dispatcher to
transmit a test count, which confirmed that the transmissions on the
frequency 463.350 MHz heard in the direction-finding vehicle exactly
matched the audio heard over the phone.
5. Later that day, the agent spoke by telephone to Discovery's service
technician, who stated that Discovery, call sign WQCK981, had been
operating a base station transmitter on the frequency 463.350 MHz from
70 West 93^rd Street, New York, NY for approximately one week. There
was no evidence of a Commission authorization for Discovery to operate
a base station transmitter on the frequency 463.350 MHz at 70 West
93^rd Street, New York, NY. Discovery's license authorized it to
operate a base station at 3412 113^th Street, Corona, Queens, NY. In
addition, Discovery's transmitting antenna was mounted on the roof of
the building at a height above ground of 73.2 meters, and a height
above average terrain ("HAAT") of 84.7 meters. Discovery's license
authorized a HAAT of 36.2 meters at the authorized location. The agent
advised Discovery's service technician that Discovery's operation was
in violation of FCC Rules.
6. On March 1, 2006, the agent spoke by telephone to the owner of
Discovery and advised him that his operation of a base station at 70
West 93^rd Street was in violation of FCC rules. Later that day,
Discovery's service technician called the New York Office and informed
the agent that Discovery was no longer using the frequency 463.350
MHz, which an agent's subsequent monitoring confirmed.
7. On March 8, 2006, the agent visited Discovery's main office at 147
Post Avenue, New York, NY and spoke with Discovery's executive
director. The agent informed the executive director that Discovery's
operation from an unauthorized location violated FCC Rules. The agent
also spoke to Discovery's secretary, who stated that Discovery had
been in operation and using their radios since February 20, 2006.
While at the office, the executive director showed the agent
Discovery's conspicuously posted license for WQCK981, which listed
Discovery's one authorized base station location as 3412 113^th
Street, Corona, Queens, NY.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
9. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service, and with a valid
authorization granted by the Commission. On February 28, 2006,
Commission agents determined that Discovery was operating radio
transmitting equipment on the frequency 463.350 MHz from an
unauthorized location with an antenna that greatly exceeded the
authorized antenna height. Agents also heard transmissions by
Discovery on 463.350 MHz on three previous days. Discovery's service
technician admitted that Discovery had been operating a base station
transmitter on the frequency 463.350 MHz from the unauthorized
location for approximately one week. Discovery's license was
conspicuously posted at its offices, clearly listing its authorized
antenna height and one authorized transmitter location in Queens, NY,
which is 6.35 miles away from the unauthorized location Discovery was
using. Based on the evidence before us, we find that Discovery
apparently willfully and repeatedly violated Section 1.903(a) of the
Rules by operating radio transmitting equipment from an unauthorized
location using an antenna that exceeded the authorized antenna height.
10. Section 90.425(a) of the Rules provides that each station must be
identified by the transmission of the assigned call sign during each
transmission or exchange of transmissions, or once each 15 minutes
during periods of continuous operation. Agents monitored Discovery's
transmissions on the frequency 463.350 on February 24, 25, and 27,
2006, and did not hear Discovery transmit its call sign identification
during any of the transmissions on those days. We therefore admonish
Discovery for its apparent willful and repeated violation of Section
90.425(a) of the Rules.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operation at an unauthorized location is
$4,000. In assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in Section 503(b)(2)(D)
of the Act, which include the nature, circumstances, extent, and
gravity of the violations, and with respect to the violator, the
degree of culpability, and history of prior offenses, ability to pay,
and other such matters as justice may require. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors, a $4,000
forfeiture is warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Discovery Transportation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violation of Section
1.903(a) of the Rules.
13. IT IS FURTHER ORDER that Discovery Transportation IS ADMONISHED for
failure to transmit its call sign identification in violation of
Section 90.425(a) of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Discovery
Transportation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
15. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
17. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
18. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 1A625, 445 12th
Street, S.W., Washington, D.C. 20554.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Discovery Transportation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 C.F.R. S 1.903(a).
47 U.S.C. S 503(b).
A check of FCC records on February 28, 2006, showed that Discovery's
license specified 70 West 93^rd Street as a control point, not a
transmitter location. Discovery's license subsequently was modified to
remove 70 West 93^rd Street as a control point.
Discovery's license for WQCK981 was modified on March 27, 2006, to change
the base station location from the original location in Queens to 1133
Ogden Avenue, Bronx, NY.
Section 312(f)(1) of the Act, 47 U.S.C. S 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', when used with reference to the
commission or omission of any act, 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...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[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 excessive antenna height increased the station's coverage area well
beyond that intended by its license.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission