**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-06-NY-047       |
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| Discovery Transportation        | ) | NAL/Acct. No: 200732380008      |
|                                 |   |                                 |
| Licensee of WQCK981             | ) | FRN: 0014 6150 58               |
|                                 |   |                                 |
| New York, NY                    | ) |                                 |
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|                                 | ) |                                 |
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|                                 | ) |                                 |
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|                                 | ) |                                 |
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|                                 | ) |                                 |
+---------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

Released: February 26, 2007

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# 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\")[^1] 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\"),[^2] 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.

# 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.[^3] 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.[^4]

# 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.[^5] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^6]

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.[^7] 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.[^8] 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.[^9] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors, a \$4,000 forfeiture is
    warranted.

# 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.[^10]

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.[^11]

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

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: 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.

[^4]: 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.

[^5]: 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\', 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).

[^6]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^7]: The excessive antenna height increased the station's coverage area
    well beyond that intended by its license.

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    1.903(a).

[^11]: *See* 47 C.F.R. § 1.1914.