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Thomas Costa

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Released: April 4, 2013

Federal Communications Commission

DA 13-599

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Thomas Costa
)
File No.: EB-FIELDSCR-12-00004683
)
NAL/Acct. No.: 201332560001
Iowa City, IA
)
FRN: 0022089429

)

FORFEITURE ORDER

Adopted:

April 4, 2013

Released:

April 4, 2013
By the Regional Director, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order, we issue a monetary forfeiture in the amount of one thousand
two hundred dollars ($1,200) to Thomas Costa for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended (Act),1 by operating radio transmitting equipment on the
frequency 87.9 MHz in Iowa City, Iowa, without Commission authorization. As discussed below, we deny
Mr. Costa’s request for cancellation of the forfeiture, but grant, in part, his request for reduction based on his
inability to pay claim.

II.

BACKGROUND

2.
On October 19, 2012, the Kansas City Office of the Enforcement Bureau’s South Central
Region issued a Notice of Apparent Liability for Forfeiture (NAL), which found Mr. Costa in violation of
Section 301 of the Act and, thereby, proposed a $10,000 monetary forfeiture.2 As reflected in the NAL, in
response to a complaint, the Bureau’s agents determined that an unlicensed radio station operated on the
frequency 87.9 MHz from a residence in Iowa City, Iowa, on September 17 and 18, 2012.3 The agents,
accompanied by the property owner, located the station’s antenna and transmitter in a room in the
basement workroom that Mr. Costa was renting.4 Mr. Costa later admitted to the agents that he installed
the radio station equipment, but denied operating the station. Instead, Mr. Costa claimed that the
equipment was owned by several individuals (who he refused to identify) who gave him rent money each
month for use of the basement room which he, in turn, gave to the property owner to pay the rent.5 Mr.
Costa asserted that the alleged operators of the station did not provide him with their names or contact
information in order to protect him and them from the Commission.6 Mr. Costa also stated that he was told
by the unnamed operators that he could expect the Commission to inspect the station at some point and


1 47 U.S.C. § 301.
2 Thomas Costa, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 13207 (Enf. Bur. 2012). A comprehensive
recitation of the facts and history of this case can be found in the NAL and is incorporated herein by reference.
3 See id. at 13207, paras. 2-3.
4 Id. at 13207, para. 3.
5 Id.
6 Id.

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DA 13-599

order him to cease operations.7 In the NAL, the Bureau found that, despite Mr. Costa’s statements to the
contrary, the overall record evidence supported finding that he either consciously operated the unlicensed
radio station and/or otherwise was involved in the general conduct or management of the station for
purposes of finding him in violation of Section 301 of the Act.8
3.
On December 5, 2012, Mr. Costa submitted a response to the NAL, requesting
cancellation or, in the alternative, a reduction of the forfeiture.9 In his response, Mr. Costa continues to
deny operating the station, and also denies stating to the agents that he installed the radio equipment.10
Mr. Costa now claims that he merely “prepared the room for [his unnamed “acquaintances”] by installing
lighting and an electrical outlet” and subleased the room to these unnamed “acquaintances.”11 In addition,
Mr. Costa argues that the forfeiture should be canceled on procedural grounds because: (1) the agents
were not entitled to enter his room because they lacked a search warrant and, therefore, any evidence
obtained from that room should have been rendered inadmissible; and (2) the Bureau was required to send
him a citation prior to issuing a notice of apparently liability for forfeiture. Alternatively, if the forfeiture
is not canceled, Mr. Costa asks the Bureau to reduce the forfeiture to $1 because he “has a very modest
income as a maintenance man, as well as very substantial US Federal income taxes and a large
outstanding student loan.”12 We address below each of these issues in turn.

III.

DISCUSSION

4.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,13 Section 1.80 of the Commission’s rules (Rules),14 and the Forfeiture Policy
Statement
.15 In examining Mr. Costa’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.16 As discussed below, we have fully considered Mr. Costa’s response
to the NAL in light of these statutory factors and find that cancellation of the forfeiture is not warranted;
however, we find that some reduction of the forfeiture is justified based solely on his inability to pay claim.



7 Id.
8 See id. at 13209, paras. 6–7.
9 See Letter from Peter Franck, Counsel for Thomas Costa, to Ronald Ramage, District Director, Kansas City Office,
South Central Region, Enforcement Bureau (Dec. 5, 2012) (on file in EB-FIELDSCR-12-00004683) (First NAL
Response
). Mr. Costa asked for an extension to file his response, which we granted. See e-mail from Ronald
Ramage, District Director, Kansas City Office, South Central Region, Enforcement Bureau to Peter Franck, Counsel
for Thomas Costa (Nov. 13, 2012, 11:00 A.M. C.S.T.) (on file in EB-FIELDSCR-12-00004683).
10 First NAL Response at 2.
11 Id.
12 See Peter Franck, Counsel for Thomas Costa, to Ronald Ramage, District Director, Kansas City Office, South
Central Region, Enforcement Bureau (Jan. 29, 2013) (on file in EB-FIELDSCR-12-00004683) (Second NAL
Response
).
13 47 U.S.C. § 503(b).
14 47 C.F.R. § 1.80.
15 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).
16 47 U.S.C. § 503(b)(2)(E).
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DA 13-599

A.

Mr. Costa Engaged in Unlicensed Operations

5.
We affirm the NAL’s finding that Mr. Costa willfully and repeatedly violated Section 301
of the Act.17 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.18 For the purposes of
Section 301, the word “operate” has been interpreted to mean both the technical operation of the station,
as well as “the general conduct or management of a station as a whole, as distinct from the specific
technical work involved in the actual transmission of signals.”19 In other words, the use of the word
“operate” in Section 301 captures not just the “actual, mechanical manipulation of radio apparatus,”20 but
also operation of a radio station generally.21 To determine whether an individual is involved in the
general conduct or management of the station, we can consider whether such individual exercises control
over the station, which the Commission has defined to include “. . . any means of actual working control
over the operation of the [station] in whatever manner exercised.”22
6.
Despite Mr. Costa’s assertion that he did not operate the unlicensed radio station, the
available record evidence demonstrates that, at the very least, he was involved in the general conduct
and/or management of the station, which is sufficient to find him in violation of Section 301. In this case,
it is undisputed that on September 17 and 18, 2012, an unlicensed radio station operated on the frequency
87.9 MHz from a basement workroom in Iowa City, Iowa, that Mr. Costa was renting. It is also
undisputed that Mr. Costa was aware that the Commission might direct him to cease the unlicensed
operations, yet he continued to operate the unlicensed radio station and/or permitted and facilitated the
ability of other unnamed individuals (based on his unfounded assertion of their existence) to operate the
station. In fact, by his own admission, he installed lighting, installed an electrical outlet, and subleased
the room for these unnamed individuals, thereby providing them with the ability to engage in the
unlicensed operations. Furthermore, if we accept as true Mr. Costa’s argument that he did not install the
radio equipment that was used (an argument which is inconsistent with the statement he originally gave to
the agents at the time of the inspection), he cannot deny the fact that, even under that circumstance, he
would have had to authorize and provide access to the rented basement to his unnamed “acquaintances”
so that they could operate the unlicensed station.23 Therefore, regardless of whether Mr. Costa physically
operated the radio station or not (and we continue to believe that he did operate the station), the foregoing


17 47 U.S.C. § 301. See NAL, supra note 2.
18 47 U.S.C. § 301.
19 See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948) (comparing the use of the words “operate” and
“operation” in Sections 301, 307, and 318 of the Act, and concluding that the word “operate” as used in Section 301
of the Act means both the technical operation of the station as well as the general conduct or management of the
station).
20 Id.
21 Id. See also 47 U.S.C § 307(c)(1).
22 See Revision of Rules and Policies for the Direct Broadcast Satellite Service, Report and Order, 11 FCC Rcd
9712, 9747 (1995), recons. denied, DIRECTV, Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).
23 Mr. Costa asserts that because the property owner turned off the unlicensed station’s transmitter during the station
inspection, he could be considered an operator of the station. See First NAL Response at 6. While the property
owner turned off the transmitter during our inspection, we have insufficient evidence (and Mr. Costa provides none)
to find that the property owner operated, or was complicit in operating, the unlicensed radio station. In addition, we
note that, during the inspection, Mr. Costa never stated that the property owner was in any way involved with the
operation of the unlicensed station.
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DA 13-599

facts make clear that Mr. Costa nonetheless had sufficient control over the station and its operations for
purposes of finding him in violation of Section 301.

B.

The Bureau’s Inspection and Resulting Enforcement Action Were Appropriate

7.
In his response, Mr. Costa also argues that the agents’ search of the basement room was
an illegal trespass that necessitated a warrant and, therefore, any evidence obtained should be
inadmissible.24 We disagree. First, it is well established that FCC agents are not required to obtain a
search warrant prior to conducting a radio station inspection.25 Second, the inspection was authorized
under Section 303(n) of the Act, which states that the Commission has the “authority to inspect all radio
installations associated with stations required to be licensed by any Act, or which the Commission by rule
has authorized to operate without a license under section 307(e)(1).”26 Third, the agents’ inspection, in
any event, was not a criminal investigation and the administrative forfeiture proceeding (as is the case
here) is not subject to the same rules of evidence applicable to a criminal court, thereby making much of
Mr. Costa’s procedural claims inapplicable.27 Finally, we find nothing in the record in this case to
support Mr. Costa’s suggestion that the agents conducted themselves in an improper manner. As the
record reflects, the agents asked the owner of the property to inspect the radio station located in the
premises. The owner took the agents to a room in the basement and opened a locked door, after which the
owner stated that he rented the room to Mr. Costa. Thus, the agents had no reason to question whether
the property owner had the authority to open the locked door.28 Based on all the foregoing, we find that
the inspection conducted by the agents was lawful and appropriate.
8.
Mr. Costa is also mistaken that he was entitled to receive a citation prior to issuance of
the NAL. Although Section 503(b) of the Act requires issuance of citations prior to forfeitures in certain
circumstances, it specifically excludes situations where individuals are found “engaging in activities for
which a license, permit, certificate, or other form of authorization is required.”29 By transmitting on a


24 See id. at 4.
25 See, e.g., Joaquim Barbosa, Forfeiture Order, 27 FCC Rcd 15334 (Enf. Bur. 2012) (search warrant not required to
conduct Commission inspection of a radio station); Norfolk Southern Railway Company, Memorandum Opinion and
Order, 11 FCC Rcd 519 (CIB 1996) (“The right to inspect a station is one of the cornerstones of the FCC’s ability to
ensure compliance with the Communications Act and the FCC regulations.”); Randall R. Gaines, Revocation Order,
72 FCC 2d 871, 878, para. 13 (Rev. Board 1979) (search warrant is not required for an inspection of a CB radio
station).
26 47 U.S.C. § 303(n) (emphasis added).
27 See Stephen Paul Dunifer, Memorandum Opinion and Order, 11 FCC Rcd 718, 729 (1995) (forfeiture proceeding
is not a criminal proceeding) (Dunifer MOO); Comcast Cable Communications, LLC, Memorandum Opinion and
Order, 26 FCC Rcd 3726 (MB 2011) (rules of evidence governing civil proceedings only apply to formal hearings
before the Commission). See also 47 C.F.R. § 1.351.
28 See Illinois v. Rodriguez, 497 U.S. 177 (1990) (finding that officer’s determination of consent to enter must be
judged against objective standard; and that if facts available to officer at the moment warrant a person of reasonable
caution to believe that consenting party had authority over premises, warrantless entry without further inquiry is
lawful). Moreover, the rented room in question was not an apartment or residence, but rather a workroom located in
the furnace room of the basement that also contained various things for general maintenance of the house (e.g.,
paint, tools, and a work bench), which led the agents to reasonably believe that the property owner had regular
access to the basement workroom. See U.S. v. Davis, 967 F.2d 84 (2nd Cir. 1992) (holding that third party consent to
search validates warrantless search if third party had access to the area searched and had either common authority
over the area, a substantial interest in the area, or permission to gain access). Mr. Costa also provided a sworn
statement from the property owner that he did not view the basement workroom as “his premises.”
29 47 U.S.C. § 503(b).
4

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DA 13-599

frequency reserved for licensed broadcast services, Mr. Costa was engaged in an activity for which a
license is required. Therefore, Mr. Costa was not entitled to receive a warning or citation prior to
issuance of the NAL in this proceeding.30

C.

Inability to Pay Claim

9.
Although Mr. Costa denies operating the unlicensed radio station, he requests in the
alternative that we reduce the proposed forfeiture to $1, based on his inability to pay claim.31 With regard
to an individual’s or entity’s inability to pay claim, the Commission has determined that, in general, gross
income or revenues are the best indicator of an ability to pay a forfeiture.32 Based on the financial
documents provided by Mr. Costa, we find sufficient basis to reduce the forfeiture to $1,200.33 However,
we caution Mr. Costa that a party’s inability to pay is only one factor in our forfeiture calculation
analysis, and is not dispositive.34 We have previously rejected inability to pay claims in cases of repeated
or otherwise egregious violations.35 Therefore, future violations of this kind may result in significantly
higher forfeitures that may not be reduced due to Mr. Costa’s financial circumstances. Accordingly, after
consideration of the entire record (including Mr. Costa’s response to the NAL), the Forfeiture Policy
Statement
, and the factors set forth in Section 503(b)(2)(E) of the Act,36 we find that, although
cancellation of the monetary forfeiture is not warranted, a reduction of the forfeiture amount from
$10,000 to $1,200 is appropriate in this case.

IV.

ORDERING CLAUSES

10.
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, Thomas Costa

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of one thousand
two hundred dollars ($1,200) for violations of Section 301 of the Act.37


30 Dunifer MOO, 11 FCC Rcd at 728.
31 See Second NAL Response, supra note 12.
32 See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd 2088, 2089 (1992) (forfeiture not
deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues); Local Long
Distance, Inc.,
Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator’s gross revenues); Hoosier Broadcasting Corporation, Forfeiture Order,
15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the
violator’s gross revenues).
33 This forfeiture amount falls within the percentage range that the Commission has previously found acceptable.
See supra
note 32. If Mr. Costa finds it financially infeasible to make full payment of this amount within 30 days,
he can request an installment plan, as described in paragraph 12, infra, of this Forfeiture Order.
34 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).
35 Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western Region 2011) (holding that violator’s
repeated acts of malicious and intentional interference outweigh evidence concerning his ability to pay), aff’d,
Memorandum Opinion and Order, DA 13-199 (Enf. Bur. Feb. 15, 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).
36 47 U.S.C. § 503(b)(2)(E). See 47 C.F.R. § 1.80(b)(5).
37 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4).
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DA 13-599

11.
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.38 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.39 Thomas Costa 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.40 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.
12.
Any request for full payment 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. 20554.41 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.


38 47 C.F.R. § 1.80.
39 47 U.S.C. § 504(a).
40 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
41 See 47 C.F.R. § 1.1914.
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DA 13-599

13.

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 Thomas Costa at his address of record
and to his counsel, Peter Franck, Law Offices of Peter Franck, 1939 Harrison Street, Suite 910, Oakland,
CA 94612.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
7

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