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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-SD-052
Donald J. Payne ) NAL/Acct. No. 200732940002
San Diego, California ) FRN: 0015901762
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 28, 2006
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Donald J. Payne, ("Payne") apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on 96.9 MHz in
San Diego, California. We conclude, pursuant to Section 503(b) of the
Act, that Payne is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On April 3, 2006, agents from the Enforcement Bureau's San Diego
Office monitored 96.9 MHz in the San Diego area and used mobile
direction finding techniques to locate broadcast transmissions on 96.9
MHz emanating from Payne's residence at 1937 33^rd Street, San Diego,
California. The agents noted that the source of the radio signal was
an antenna atop a mast attached to a garage on the property. The San
Diego agents determined that the signal being broadcast exceeded the
limits for operation under Part 15 of the Commission's Rules ("Rules")
and therefore required a license. According to FCC records, neither
Payne, nor any other person or entity, holds an authorization to
broadcast on that frequency from that location.
3. On April 13, 2006, the San Diego Office sent Payne a detailed Notice
of Unlicensed Operation ("Notice"), which gave Payne an opportunity to
reply. The Notice stated that the unlicensed operation of the radio
station must be discontinued immediately, that operation of radio
transmitting equipment without a valid radio station authorization
constituted a violation of Section 301 of the Act, and that failure to
stop the operation could result in various penalties, including
forfeiture of the equipment. Two copies of the Notice were mailed to
Payne. One was mailed via certified mail and other via regular mail.
No reply was received.
4. On April 19, 2006, the agents used mobile direction finding techniques
to locate broadcast transmissions on 96.9 MHz emanating from Payne's
residence. The agents again took field strength measurements and
determined that the signals being broadcast exceeded the limits for
operation under Part 15 and therefore required a license. The agents
found only one electric meter on the property of 1937 33^rd Street,
San Diego, California.
5. On June 13, 2006, San Diego agents approached Payne in his front yard
and interviewed him about the antenna mast on his garage and the
unlicensed radio station broadcasting from his property. Payne told
the agents that he had nothing to do with the station. Payne indicated
to the agents that he was leasing his garage to "FRSD" for $100 per
month. Payne also said he did not have access to his garage as the
tenants had installed a lock on it. Before leaving the area the agents
took field strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of the Rules
and therefore required a license.
6. On October 17, 2006, the agents used mobile direction finding
techniques to locate broadcast transmissions on 96.9 MHz emanating
from Payne's residence. The agents again took field strength
measurements and determined that the signals being broadcast exceeded
the limits for operation under Part 15 and therefore required a
license.
7. On November 13, 2006, the agents used mobile direction finding
techniques to locate broadcast transmissions on 96.9 MHz emanating
from Payne's residence. The agents again took field strength
measurements and determined that the signals being broadcast exceeded
the limits for operation under Part 15 and therefore required a
license. When agents attempted to inspect the radio station, no one
would answer the door, although vehicles were parked in the
residence's driveway. The agents left copies of the April 13, 2006
Notice at the residence.
III. 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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. Section 301 of the Act requires 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. Section 3(33) of the Act
defines "communications by radio" as "the transmission by radio of
writing, signs, signals, pictures, and sounds of all kinds, including
all instrumentalities, facilities, apparatus, and services (among
other thing the receipt, forwarding, and delivery of communications)
incidental to such transmission." On April 3, 2006, April 19, 2006,
June 13, 2006, October 17, 2006, and November 13, 2006, Payne provided
services and facilities incidental to the transmission of
communications by radio occurring on 96.9 MHz in San Diego,
California. Specifically, Payne provided the real property on which
the operation took place, and provided the electric current used to
power the radio station. Consequently, he apparently participated in
the operation of the unlicensed station. Additionally, Payne failed to
respond to numerous warnings from San Diego agents with evidence of a
Commission authorization for the station or with evidence of any
efforts to end the illegal operation he was supporting on his
property.
10. Payne was warned by San Diego agents, both orally and in writing, over
a period of several months, that an unlicensed radio station was
operating from his property and that he would be held liable for its
operation. Because Payne failed to stop the operation of the station
after he received repeated notices and warnings that operation of the
station was unauthorized, his violation is willful. Payne's violation
occurred on more than one day, therefore, it is repeated. Based on the
evidence before us, we find Payne apparently willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
apparatus without a license on 96.9 MHz.
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 operating without an instrument of
authorization is $10,000. 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, we find that Payne is apparently liable for a
forfeiture of $10,000.
IV. 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, Donald J. Payne is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violation of Section 301 of the
Act.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Donald J. Payne SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission.\001 The
payment must include the NAL/Acct. No. and FRN No. referenced
above.\001 Payment by\001check or money order may be mailed to Federal
Communications Commission, P.O. Box\001358340,\001Pittsburgh, PA
15251-8340.\001 Payment by overnight mail may be sent to\001Mellon
Bank\001/LB\001358340,\001500 Ross Street, Room 1540670, Pittsburgh,
PA 15251.\001\001 Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego District
Office, 4542 Ruffner St., Suite 370, San Diego, CA 92111, and must
include the NAL/Acct. No. referenced in the caption.
16. 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.
17. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. 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 Donald J. Payne.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. The measurements
made on April 3, 2006, indicated that the signal was 7,778 times greater
than the maximum permissible level for a non-licensed Part 15 transmitter.
The San Diego Office received from the U.S. Postal Service the returned
certified copy of the Notice of Unlicensed Operation indicating it had
been refused. The regular mail copy of the Notice of Unlicensed Operation
was not returned.
47 U.S.C. S 301.
The measurements made on April 19, 2006, indicated that the signal was
12,395 times greater than the maximum permissible level for non-licensed
Part 15 transmitters.
The measurements made on June 13, 2006, indicated that the signal was
7,661 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter.
The measurements made on October 17, 2006, indicated that the signal was
8,930 times greater than the maximum permissible level for non-licensed
Part 15 transmitters.
The measurements made on November 13, 2006, indicated that the signal was
6,734 times greater than the maximum permissible level for non-licensed
Part 15 transmitters.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 U.S.C. S 153(33).
Section 3(35) of the Act defines "radio station" as a "station equipped to
engage in radio communication or radio transmission of energy." 47 U.S.C.
S 153(35).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission