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$4K Forfeiture to Glen Rubash for Operating Unlicensed Radio Station

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Released: November 21, 2013

Federal Communications Commission

DA 13-2235


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Glen Rubash
)
File Number: EB-FIELDSCR-12-00004676
)
NAL/Acct. No.: 201332560002
Licensee of Amateur Radio Station KC0GPV
)
FRN: 0002373934

Manhattan, Kansas
)

FORFEITURE ORDER

Adopted: November 21, 2013

Released: November 21, 2013

By the Regional Director, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of four
thousand dollars ($4,000) to Glen Rubash for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended (Act).1 The noted violations involved Mr. Rubash’s operation of
an unlicensed radio transmitter on the frequency 88.3 MHz in Manhattan, Kansas.

II.

BACKGROUND

2.
On December 5, 2012, the Enforcement Bureau’s Kansas City Office (Kansas City
Office) issued a Notice of Apparent Liability for Forfeiture (NAL) to Mr. Rubash for operating an unlicensed
radio transmitter in Manhattan, Kansas.2 As reflected in the NAL, on September 26 and 27, 2012, agents
from the Kansas City Office determined that an unlicensed radio station was operating on the frequency
88.3 MHz from a detached garage in Manhattan, Kansas.3 The agents determined that Mr. Rubash secured
space to the garage specifically to house and operate the unlicensed radio station.4 On September 27, 2012,
Mr. Rubash admitted over the telephone that he installed and owned the station’s radio transmitting
equipment and demonstrated control over the station by stating that he would refuse to surrender the
equipment to the agents from the Kansas City Office if required to do so.5
3.
In response to the NAL, Mr. Rubash requests cancellation or reduction of the proposed
forfeiture.6 While he admits making the admissions via telephone on September 27, 2012, he asserts that his
statements were based on incorrect information. He states he owned and installed a low power FM radio
transmitter, which operated within Part 15 unlicensed limits7 and was only able to reach 300 feet beyond the


1 47 U.S.C. § 301.
2 Glen Rubash, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 15044 (Enf. Bur. 2012) (NAL). A
comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein by
reference.
3 Id. at 15044, paras. 2–3.
4 Id. at 15046, para.6.
5 Id. at 15044, para. 3.
6 Letter from Glen Rubash to Kansas City Office, South Central Region, Enforcement Bureau at 1-2 (received Dec.
20, 2012) (NAL Response).
7 See, e.g., 47 C.F.R. § 15.209.

Federal Communications Commission

DA 13-2235

garage housing the station, to teach a small group of college and high school students how to operate a
community radio station.8 He states he attached his transmitter to a home-built antenna supplied by one of
the students.9 He claims no knowledge of the radio transmitter that was in place when the agents inspected
the station on September 27, 2012, because he was absent from the station from late July until September
29, 2012, due to illness.10 He asserts that someone must have replaced the transmitter while he was
recuperating from his illness.11 Accordingly, he asserts he should not be held responsible for unlawful
actions which occurred during his absence.12 Finally, in the alternative, Mr. Rubash asserts that he is unable
to pay the forfeiture and requests a reduction.13

III.

DISCUSSION

4.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,14 Section 1.80 of the Commission’s rules (Rules),15 and the Forfeiture Policy
Statement
.16 In examining Mr. Rubash’s NAL 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.17
5.
We affirm the NAL’s finding that Mr. Rubash violated Section 301 of the Act.18 Section 301
of the Act states that no person shall use or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States, except under and in accordance with the Act
and with a license granted under the provisions of the Act.19 It is undisputed that Mr. Rubash secured the
garage space for use by the radio station, and owned and operated a radio transmitter on the frequency 88.3
MHz without a license. Mr. Rubash contends, however, that his transmitter was not the transmitter found in
use by agents on September 27, 2012. Assuming he owned and operated the low power FM transmitter as
alleged,20 we would still conclude he violated Section 301 of the Act. Based on the pictures provided by


8 Mr. Rubash provided photographs of his low power FM radio transmitter. See NAL Response at 4-5.
9 Id.
10 Mr. Rubash states that when he went to the station on September 29, 2012, several pieces of equipment had been
removed from the station and there was no transmitter present other than his disconnected low power transmitter. Id
at 2-3. Mr. Rubash, however, provided no corroborating documentation for his statement, such as a police report
detailing the property loss.
11 Id. at 2.
12 Mr. Rubash also states that he was under the influence of pain medication during his telephone conversation on
September 27, 2012. See NAL Response at 2. As discussed in paragraph 5 infra, Mr. Rubash’s written statements in
the NAL Response, made while he was not under the influence of medication, also demonstrate that he violated
Section 301. Therefore, although Mr. Rubash appeared to sound lucid to agents on September 27, 2012, his written
statements in the NAL Response are sufficient to affirm the NAL’s finding that Mr. Rubash violated Section 301 of the
Act.
13 Id. at 3.
14 47 U.S.C. § 503(b).
15 47 C.F.R. § 1.80.
16 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).
17 47 U.S.C. § 503(b)(2)(E).
18 See NAL supra note 2.
19 47 U.S.C. § 301.
20 We remain skeptical of Mr. Rubash’s story, as he made no mention of students of any kind during the interview
on September 27, 2012.
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Federal Communications Commission

DA 13-2235

Mr. Rubash and information gathered by agents from the Kansas City Office, it appears his low power FM
transmitter was not FCC certified. Moreover, the home-built antenna in use at the station was not
authorized to be used with his transmitter. All intentional radiators operating pursuant to Part 15 of the
Rules must be certified for use as a Part 15 device.21 Intentional radiators may only be operated with the
antenna with which they are authorized.22 Operating a Part 15 device in a manner that is inconsistent with
the Part 15 Rules requires a license pursuant to Section 301 of the Act.23 Accordingly, operation of the
non-certified low power FM transmitter with an unauthorized antenna described by Mr. Rubash was
inconsistent with Part 15 and required a license under Section 301 of the Act. A review of the
Commission’s records confirms that no license or authorization was issued to anyone to operate a radio
station on 88.3 MHz from this location. Moreover, the fact that Mr. Rubash may have been absent from the
station for a period of time does not mean that he did not operate or exercise control over the station, as
multiple individuals may operate the same station.24 We have previously held that, because Section 301 of
the Act provides that “no person shall use or operate”25 radio transmission equipment, liability for
unlicensed operation may be assigned to any individual taking part in the operation of the unlicensed station,
regardless of who else may be responsible for the operation.26 Therefore, based on the evidence before us,
we conclude that Mr. Rubash willfully and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
6.
In the NAL Response, Mr. Rubash also states that he is unable to pay the $15,000 forfeiture.
With regard to an individual or entity’s inability to pay claim, the Commission has determined that gross
revenues are generally the best indicator of an ability to pay a forfeiture.27 Based on the financial
documents provided by Mr. Rubash, we find sufficient basis to reduce the forfeiture to $4,000.28
However, we caution Mr. Rubash that a party’s inability to pay is only one factor in our forfeiture
calculation analysis, and is not dispositive.29 We have previously rejected inability to pay claims in cases
of repeated or otherwise egregious violations.30 Therefore, future violations of this kind may result in
significantly higher forfeitures that may not be reduced due to Mr. Rubash’s financial circumstances.


21 See 47 C.F.R. § 15.201(b).
22 See 47 C.F.R. § 15.204(c).
23 See 47 C.F.R. § 15.1(b).
24 See Durrant Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6982 (Enf. Bur. 2011) (finding the
fact that someone else may have been involved in the operation of unlicensed station does not lessen culpability).
25 47 U.S.C. § 301.
26 See, e.g., Durrant Clarke, 26 FCC Rcd at 6984, para. 7; Loyd Morris, Notice of Apparent Liability for Forfeiture,
25 FCC Rcd 13736, 137638–39, para. 8 (Enf. Bur. 2010); Robert Brown, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13740, 13741–42, para. 8 (Enf. Bur. 2010); Jean L. Senatus, Forfeiture Order, 20 FCC Rcd
14418, 14420, para. 11 (Enf. Bur. 2005).
27 See Hoosier Broadcasting Corp., Memorandum Opinion and Order, 15 FCC Rcd 8640 (2000) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the violator’s gross revenues); Local Long
Distance, Inc.
, Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator’s gross revenues).
28 This forfeiture amount falls within the percentage range that the Commission has previously found acceptable.
See supra
note 27.
29 See 47 U.S.C. § 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).
30 Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that violator’s repeated acts of
malicious and intentional interference outweighed evidence concerning his ability to pay), aff’d, Memorandum
Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd
13699 (Enf. Bur. 2009) (holding that permittee’s continued operation at variance with its construction permit
constituted an intentional and continuous violation, which outweighed permittee’s evidence concerning its ability to
pay the proposed forfeitures).
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Federal Communications Commission

DA 13-2235

IV.

ORDERING CLAUSES

7.
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, Glen Rubash

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of four thousand
dollars ($4,000) for violations of Section 301 of the Act.31
8.
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 Order.32 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.33 Glen Rubash shall send electronic notification of
payment to SCR-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.34 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:
Ÿ
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.
Ÿ
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.
Ÿ
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.
9.
Any request for 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. 20554.35 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.


31 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4).
32 47 C.F.R. § 1.80.
33 47 U.S.C. § 504(a).
34 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
35 See 47 C.F.R. § 1.1914.
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Federal Communications Commission

DA 13-2235

10.

IT IS FURTHER ORDERED

that a copy of this Order shall be sent by both First Class
and Certified Mail, Return Receipt Requested, to Glen Rubash at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
5

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