Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. R336667             |
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| BATTERY CITY CAR &               | ) | File No. D98730              |
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| LIMOUSINE SERVICE                | * |                              |
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| Application for Renewal of       | * |                              |
| License of Business              | * |                              |
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| Radio Station WNDV558, Brooklyn, | * |                              |
| New York                         | * |                              |
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| Application for Modification of  | * |                              |
| License of Business Radio        | * |                              |
| Station License WNDV558,         | ) |                              |
| Brooklyn, New York               | * |                              |
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+----------------------------------+---+------------------------------+

**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
Commission[^1]^1^ 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 Rules[^2]^2^ failing to monitor before
transmitting over Station WNDV558, in apparent violation of 90.403(e) of
the Commission's Rules[^3]^3^ and failing to provide station
identification, in apparent violation of Section 90.425(a[^4]^4^ of the
Commission's Rules[^5]^5^

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 transmitting[^6]^6^ 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 (mobile[^7]^7^ 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]^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
Rule[^9]^9^ and had not identified its communications, an apparent
violation of Section 90.425(a) of the Commission's Rules[^10]^10^
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 Orde[^11]^11^ 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 Rules[^12]^12^ 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 transmitting[^13]^13^ By letter dated June 18,
1999[^14]^14^ 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 18,1999[^15]^15^

8\. The WTB sent a follow-up letter of inquiry, dated August 2, 1999, to
Battery, pursuant to Section 308(b) of the Act[^16]^16^ In that letter,
the Bureau again directed Battery to furnish the information that the
Bureau had initially sought in its June 18, 1999,
correspondence[^17]^17^ Battery responded to the follow-up letter of
inquiry on August 16, 1999.^18^[^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 Order[^19]^19^ On December 9, 1999, the
Commission dismissed Battery's petition for reconsideration of the
August 11, 1999, action[^20]^20^

**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
Station[^21]^21^ 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]^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]^23^
Short-term renewal "is appropriate when the purpose is to test future
compliance with FCC operating requirements . . . .[^24]^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
untimely[^25]^25^ 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 channel[^26]^26^ 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

[^1]: ^.1^ *See* Letter dated from March 25, 1997, from Law Offices of
    Thomas K. Crowe (counsel for Tel-A-Car) to Secretary, Federal
    Communications Commission.

[^2]: ^;2^ 47 C.F.R. § 90.403(a).

[^3]: ^;3^ 47 C.F.R. § 90.403(e).

[^4]: ^)4^ 47 C.F.R. § 90.425(a).

[^5]: ^.5^ *See* Letter dated April 16, 1997 from Alexander Zimny,
    District Director, Compliance and Information Bureau to Battery City
    Car & Limo Service, Inc.

[^6]: ^.6^ Letter of June 22, 1998, from Law Offices of Thomas K. Crowe
    to Magalie Roman Salas.

[^7]: ^)7^ The FCC's license records previously indicated that Battery
    was inadvertently assigned 806.7375 MHz as a mobile frequency,
    rather than 808.7375 MHz. This assignment apparently resulted from a
    typographical error in Battery\'s application to modify its license
    (granted April 29, 1997). Battery\'s mobile frequency is required by
    Section 90.613 of the Commission\'s Rules, 47 C.F.R. § 90.613, to be
    45 MHz lower than the base frequency. Thus, the assignment of the
    frequency 806.7375 MHz to Battery (rather than 808.7375 MHz) was an
    error which was inconsistent with Commission policy because it was
    47 MHz lower than the associated base frequency, 853.7375 MHz. By
    letter issued August 28, 1998, the Public Safety and Private
    Wireless Division corrected the anomaly in Battery\'s license, *nunc
    pro tunc, inter alia*, to specify the correct mobile frequency of
    808.7375 MHz.

[^8]: ^)8^ *Battery City Car and Limousine Service*, 13 FCC Rcd 16273
    (Wireless Tel. Bur. 1998).

[^9]: ^s9^ 47 C.F.R. §§ 90.113 and 90.135(a)(5).

[^10]: ^.10^ 47 C.F.R. § 90.425(a).

[^11]: ^r11^ *Battery City Car and Limousine Service* , 13 FCC Rcd 25046
    (Wireless Tel. Bur. 1998) (Forfeiture Order).

[^12]: ^.12^ 47 C.F.R. §§ 90.113, 90.135(a)(5) and 90.425(a).

[^13]: ^.13^ Letter of June 9, 1999, from Law Offices of Thomas K. Crowe
    to Magalie Roman Salas, Secretary, Federal Communications
    Commission.

[^14]: ^,14^ Letter of June 18, 1999, from Gary P. Schonman, Chief,
    Compliance and Litigation Branch, Enforcement and Consumer
    Information Division, Wireless Telecommunications Commission, to
    Frederick M. Joyce, Esq.

[^15]: ^.15^ Letter of July 12, 1999, from Frederick M. Joyce, Esq. to
    Gary P. Schonman.

[^16]: ^.16^ 47 U.S.C. § 308(b).

[^17]: ^.17^ *See* Letter of August 2, 1999, from Gary P. Schonman to
    Frederick M. Joyce, Esq.

[^18]: ^18^ *See* Letter of August 16, 1999, from Frederick M. Joyce,
    Esq., to Thomas D. Fitz-Gibbon, Attorney, Compliance and Litigation
    Branch, Enforcement and Consumer Information Division, Wireless
    Telecommunications Commission.

[^19]: ^.19^ *Battery City Car and Limousine Service*, 14 FCC Rcd 13717
    (1999) (Application for Review Order).

[^20]: ^.20^ *Battery City Car and Limousine Service*, FCC 99-382
    (released December 9, 1999).

[^21]: ^.21^ *See* former Section 90.163 of the Commission's Rules, 47
    C.F.R. § 90.163, which was in effect at the time Tel-A-Car filed its
    petition. The Commission's current rules also do not allow for the
    filing of petitions to deny against applications for stations in the
    private wireless services. *See* 47 C.F.R. §§ 1.933(d)(9), 1.939(a).

[^22]: ^"22^ *Policy Regarding Character Qualifications in Broadcast
    Licensing*, 102 FCC 2d 1179, 1189 (1986).

[^23]: ^"23^ *See* *Abacus Broadcasting Corp.*, 8 FCC Rcd 5110, 5117
    (Rev. Bd. 1993).

[^24]: ^"24^ *Id.* at 5117 (concurring statement of Board Member
    Blumenthal).

[^25]: ^.25^ *See* Application for Review Order, 14 FCC Rcd at 13723-24.

[^26]: ^.26^ *See Michael McDermott*, 11 FCC Rcd 5750 (1996).