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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Hilltop Tower Leasing, Inc. Licensee of Station WPSQ972
Everett, Pennsylvania ) ) ) ) ) ) ) File Number: EB-10-PA-0014 NAL/Acct.
No.: 201132400003 FRN: 0016-89-6722
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 14, 2011 Released: January 18, 2011
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hilltop Tower Leasing, Inc. ("Hilltop"), licensee of land mobile
radio station WPSQ972, in Everett, Pennsylvania, apparently willfully
and repeatedly violated Section 1.903(a) of the Commission's Rules
("Rules")^ by operating from an unauthorized location. We conclude
that Hilltop is apparently liable for a forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. At the time of the investigation at issue here, the license for land
mobile radio station WPSQ972 authorized Hilltop to operate radio
transmitting equipment on the frequencies 452.2375 MHz, 452.2625 MHz,
452.3625 MHz and 461.4125 MHz from antenna structure number 1204406
located on Tussey Mountain in Everett, Pennsylvania at the coordinates
40^o 00' 04.3" North Latitude and 078^o 24' 03.1" West Longitude.^
3. On January 19 and January 20, 2010, an agent from the Enforcement
Bureau's Philadelphia Office ("Philadelphia Office") determined that
digital emissions on the frequencies 452.2375 MHz and 461.4125 MHz
were emanating from radio transmitting equipment located on antenna
structure number 1207856 at Kinton Knob Mountain in Bedford,
Pennsylvania at the coordinates 40 ^ o 00' 46.3" North Latitude and
078 ^ o 33' 11.0" West Longitude, approximately eight miles from
Tussey Mountain. After conducting the monitoring on January 20, 2010,
the agent contacted Hilltop and spoke with its president, Jeff
MacAlarney, who claimed that he could not answer the agent's questions
regarding operation on the frequencies 452.2375 MHz and 461.4125 MHz
at Kinton Knob Mountain. Later that day, however, the agent found that
operation on those frequencies had stopped.^
4. The Philadelphia Office issued a Letter of Inquiry ("LOI") to Hilltop
on February 23, 2010. ^ ^ In response to the LOI, Hilltop admitted
that, in December 2009, it had moved some of the radio transmitting
equipment for station WPSQ972 from its authorized location on Tussey
Mountain in Everett, Pennsylvania, to Kinton Knob Mountain in Bedford,
Pennsylvania.^ Hilltop further conceded that the equipment remained in
operation and periodically transmitted data bursts.^ Hilltop also
claimed that it was maintaining the station at Kinton Knob Mountain as
a backup for Bedford County 911, which had been experiencing problems
with one of its Bedford County dispatch stations on Tussey Mountain.^
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended ("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.^
6. Section 1.903(a) of the Rules provides 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.^ Section 1.903(b) further
provides that the "holding of an authorization does not create any
rights beyond the terms, conditions, and period specified in the
authorization."^ As described above, on January 19 and January 20,
2010, an agent from the Philadelphia Office determined that Hilltop
operated station WPSQ972 on the frequencies 452.2375 MHz and 461.4125
MHz from an unauthorized location. Hilltop conceded in response to the
LOI that it had moved station WPSQ972 from Tussey Mountain to Kinton
Knob Mountain in December 2009 for the purpose of providing a backup
for Bedford County 911. Hilltop further admitted that the transmitting
equipment was operating and periodically transmitting digital bursts.^
Based on the evidence before us, we find that Hilltop apparently
willfully and repeatedly violated Section 1.903(a) of the Rules by
operating radio transmitting equipment at an unauthorized location.
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operating 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)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Hilltop is apparently liable for a forfeiture in the amount of
$4,000.
IV. ORDERING CLAUSES
8. 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, Hilltop Tower Leasing, Inc.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
1.903(a) of the Rules.^
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Hilltop Tower Leasing
Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
[1]ARINQUIRIES@fcc.gov. Hilltop Tower Leasing, Inc. shall also send
electronic notification on the date said payment is made to
[2]NER-Response@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and must include the NAL/Acct. No. referenced in
the caption. The statement shall also be emailed to
[3]NER-Response@fcc.gov.
12. 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.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Hilltop Tower Leasing, Inc. at 400
Highland Avenue, Altoona, Pennsylvania, 16602.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
^ 47 C.F.R. S 1.903(a).
^ See File No. 0002685135.
^ During a telephone conversation with the agent on January 26, 2010, Mr.
MacAlarney acknowledged that he had contacted the station's technician on
January 20, 2010 and asked him to turn off the transmitter.
^ See Letter of Inquiry from Gene J. Stanbro, District Director,
Philadelphia Office, Northeast Region, Enforcement Bureau, to Hilltop
Tower Leasing, Inc., dated February 23, 2010.
^ See Letter from Jeff MacAlarney, President, Hilltop Tower Leasing, Inc.,
to Gene J. Stanbro, District Director, Philadelphia Office, Northeast
Region, Enforcement Bureau, dated March 3, 2010 ("LOI Response").
^ LOI Response at 2.
^ Id. Hilltop no longer operates on Kinton Knob Mountain, but an
affiliated company, Compros, Inc., obtained a license under call sign
WQLH893 to operate on the frequencies 452.2375 MHz, 452.3625 MHz, and
461.4125 MHz from antenna structure number 1207856 on Kinton Knob Mountain
in Bedford, Pennsylvania. See File No. 0004098883, granted January 26,
2010.
^ 47 U.S.C. S 503(b).
^ 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,e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. Denied, 7
FCC Rcd 3454 (1992).
^ 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."
^ 47 C.F.R. S 1.903(a).
^ 47 C.F.R. S 1.903(b).
^ Id.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.903(a).
^8 See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-84
3
Federal Communications Commission DA 11-84
References
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