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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




   FORFEITURE ORDER

   Adopted: November 25, 2013 Released: November 26, 2013

   By the Regional Director, Northeast Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of three thousand two hundred dollars ($3,200) to Hilltop
       Tower Leasing, Inc. (Hilltop), licensee of Private Land Mobile Station
       WPSQ972, in Everett, Pennsylvania, for willfully and repeatedly
       violating Section 1.903(a) of the Commission's rules (Rules).^ The
       noted violation involved Hilltop's operation of Station WPSQ972 from
       an unauthorized location.

   II. BACKGROUND

    2. The Enforcement Bureau's Philadelphia Office issued a Notice of
       Apparent Liability for Forfeiture (NAL) ^ ^ to Hilltop for operation
       of Station WPSQ972 (Station) at an unauthorized location.
       Specifically, on January 19 and 20, 2010, agents found that emissions
       on the frequencies 452.2375 MHz and 461.4125 MHz were emanating from
       radio transmitting equipment located at Kinton Knob Mountain in
       Bedford, Pennsylvania, approximately eight miles from the location at
       which Hilltop was authorized to operate on those frequencies under the
       license for Station WPSQ972.

    3. Hilltop filed a response to the NAL requesting a cancellation or
       reduction of the forfeiture amount.^ In its NAL Response, Hilltop does
       not dispute the findings in the NAL concerning the emissions emanating
       on 452.2375 MHz and 461.4125 MHz from radio transmitting equipment
       located at Kinton Knob Mountain, but claims that the violation was not
       willful because any emissions from the transmitting equipment were
       inadvertent.^ In this regard, Hilltop explains that some of the
       transmitting equipment for Station WPSQ972 was moved to Kinton Knob as
       a backup for Bedford County 911's dispatch system and that Hilltop, as
       Bedford County 911's service provider, intended for the transmitting
       equipment to remain idle unless needed by Bedford County 911.^ Hilltop
       also asserts that a cancellation or reduction of the forfeiture is
       warranted because it immediately turned off the transmitter once
       notified of the emissions by FCC agents.^

   III. DISCUSSION

    4. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       (Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
       Statement.^ In examining Hilltop's response, Section 503(b)(2)(E) 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 other such matters as justice may
       require.^ As discussed below, we have considered Hilltop's response in
       light of these statutory factors, and find that Hilltop willfully and
       repeatedly violated Section 1.903(a) of the Rules, but that a
       reduction of the forfeiture is justified based on Hilltop's history of
       compliance with the Commission's rules.

    5. We find that the evidence supports the NAL's findings that Hilltop
       willfully and repeatedly operated Station WPSQ972 from an unauthorized
       location. Section 1.903(a) of the Rules states that "[s]tations in the
       Wireless Radio Service must be used and operated only in accordance
       with the rules applicable to their particular service as set forth in
       this title and with a valid authorization granted by the Commission. .
       . ." ^ ^ Section 1.903(b) further states that "[t]he holding of an
       authorization does not create any rights beyond the terms, conditions
       and period specified in the authorization."^ It is undisputed that, on
       January 19 and 20, 2010, emissions on the frequencies 452.2375 MHz and
       461.4125 MHz were emanating from Hilltop's radio transmitting
       equipment located at Kinton Knob Mountain in Bedford, Pennsylvania,
       approximately eight miles from the location at which Hilltop was
       authorized to operate on those frequencies under the license for
       Station WPSQ972. Nevertheless, Hilltop claims that, because it
       believed the transmitting equipment atop Kinton Knob Mountain was
       idle, the violation was inadvertent and therefore not willful. We
       disagree. Hilltop conceded in its response to a Letter of Inquiry,
       dated March 3, 2010, that the equipment it had relocated to Kinton
       Knob was operating and periodically transmitting data bursts.^ It has
       advanced no reason, nor can we discern one, that would account for
       that operation other than its own acts. Section 312(f)(1) of the Act
       defines "willful" as the "conscious and deliberate commission or
       omission of [any] act, irrespective of any intent to violate" the
       law.^ Moreover, the Commission has held that inadvertent mistakes do
       not excuse a rule violation nor mitigate a forfeiture liability.^ We
       therefore find that Hilltop willfully and repeatedly violated Section
       1.903(a) of the Rules by operating Station WPSQ972 from an
       unauthorized location.

    6. We also decline to cancel or reduce the proposed forfeiture based on
       the actions taken by Hilltop after being notified of the unauthorized
       emissions by FCC agents. As the Commission has long held, corrective
       action to come into compliance with the Rules is expected, and such
       corrective action does not nullify or mitigate prior violations or
       associated forfeiture liability.^  Accordingly, cancellation or
       reduction of the proposed forfeiture amount is not warranted on this
       basis.

    7. We do, however, find that a reduction of the forfeiture in the amount
       of $800 is warranted to reflect Hilltop's history of compliance with
       the Commission's rules.^ Therefore, pursuant to Section 503(b) of the
       Act,^ and in conjunction with the Forfeiture Policy Statement, we
       impose a forfeiture in the amount of $3,200.

   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, 0.204,
       0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Hilltop Tower
       Leasing, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       three thousand two hundred dollars ($3,200) for violation of Section
       1.903(a) of the Commission's rules.^

    9. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Hilltop Tower Leasing, Inc. shall send
       electronic notification of payment to NER-Response@fcc.gov on the date
       said payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account number and FRN referenced above. Regardless of the form of
       payment, a completed FCC Form 159 (Remittance Advice) must be
       submitted.^ When completing the FCC Form 159, enter the Account Number
       in block number 23A (call sign/other ID) and enter the letters "FORF"
       in block number 24A (payment type code).   Below are additional
       instructions you should follow based on the form of payment you
       select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   10. Any request for making full payment over time under an installment
       plan should be sent to:  Chief Financial Officer--Financial
       Operations, Federal Communications Commission, 445 12th Street, S.W.,
       Room 1-A625, Washington, D.C.  20554.^  If you have questions
       regarding payment procedures, please contact the Financial Operations
       Group Help Desk by phone, 1-877-480-3201, or by e-mail,
       ARINQUIRIES@fcc.gov.

   11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by both First Class Mail and Certified Mail, Return Receipt
       Requested, to Hilltop Tower Leasing, Inc. at 400 Highland Avenue,
       Altoona, Pennsylvania 16602.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director, Northeast Region

   Enforcement Bureau

   ^ 47 C.F.R. S 1.903(a).

   ^ Hilltop Tower Leasing, Inc., Notice of Apparent Liability for
   Forfeiture, 26 FCC Rcd 341 (Enf. Bur. 2011) (NAL). A comprehensive
   recitation of the facts and history of this case can be found in the NAL
   and is incorporated herein by reference.

   ^ Letter from Jeff MacAlarney, President, Hilltop Tower Leasing, Inc., to
   Philadelphia Office, Northeast Region, Enforcement Bureau (February 18,
   2011) (on file in EB-10-PA-0014) (NAL Response).

   ^ Id.

   ^ Hilltop reports that its plans initially were to request a Special
   Temporary Authorization to operate from Kinton Knob if necessary. See NAL
   Response at 2. Hilltop states, however, that after the agents' inspection,
   its sister company, ComPros, Inc., obtained a license to operate at Kinton
   Knob. Id.; see also license for Station WQLH893, granted January 26, 2010.

   ^ NAL Response at 2.

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ 47 C.F.R. SS 1.903(a).

   ^ 47 C.F.R. SS 1.903(b).

   ^ 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.

   ^ 47 U.S.C. S 312(f)(1). Section 312(f)(1) of the Act also applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act. 47 U.S.C. S 503(b).

   ^ See, e.g.,  Southern California Broadcasting Co., Memorandum Opinion and
   Order, [1]6 FCC Rcd 4387, 4387, para. 3 (1991) (holding that ignorance of
   the law or inadvertent mistakes are not mitigating circumstances that can
   serve to justify a forfeiture reduction), recons. denied, [2]7 FCC Rcd
   3454 (1992); see also Princess K Fishing Corp., Forfeiture Order, 24 FCC
   Rcd 2606, 2608-09, para. 8 (Enf. Bur. 2009) (stating that a licensee need
   not have the mens rea to commit a violation in order for a violation to be
   "willful"), recons. dismissed, Memorandum Opinion and Order, 27 FCC Rcd
   4707 (Enf. Bur. 2012).

   ^ See, e.g., Argos Net, Inc., Forfeiture Order, 28 FCC Rcd 1126 (Enf. Bur.
   2013) (finding that post-notification remedial efforts do not warrant
   mitigation of a forfeiture), citing International Broadcasting
   Corporation, Order on Review, 25 FCC Rcd 1538 (2010).

   ^ See e.g. Walgreen Co., 22 FCC Rcd 16045, 16049 at para. 11 (Enf. Bur.
   2007) (reduced forfeiture amount based, in part, on Walgreen Co.'s history
   of compliance with the Commission's rules) (forfeiture paid).

   ^ 47 U.S.C. S 503(b).

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
   1.903(a).

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 13-2257

   Federal Communications Commission DA 13-2257

References

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