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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
)
)
FORFEITURE ORDER
Adopted: June 11, 2007 Released: June 13, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven hundred and fifty dollars ($750) to Donald J.
Payne ("Payne"), for willful and repeated violations of Section 301 of
the Communications Act of 1934, as amended ("Act"). On December 28,
2006, the San Diego Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $10,000 to Payne after determining
that Payne apparently willfully and repeatedly operated an unlicensed
radio transmitter on on 96.9 MHz in San Diego, California. In this
Order, we consider Payne's arguments that he was the landlord of the
garage that the unlicensed station operated from, but that he did not
operate the station, that he shut down the station prior to the
issuance of the NAL, and that he is unable to pay the proposed
forfeiture.
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.
8. On December 28, 2006, the San Diego Office issued a NAL in the amount
of $10,000 to Payne. Payne filed a response to the NAL on January 26,
2007 ("Response"). In his Response, Payne argues he was the landlord
of the garage that unlicensed station operated from, but that he did
not operate the station, that he shut down the station prior to the
issuance of the NAL, and that he is unable to pay the proposed
forfeiture. Finally, if a forfeiture is imposed, Payne asks for a
personal interview and/or a hearing with a Commission official at the
nearest field office to discuss the NAL.
III. DISCUSSION
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Payne's response, Section 503(b) 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.
10. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy of 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.
11. In his Response, Payne argues that his was not the owner or the
operator of the unlicensed station that was broadcasting out of his
garage. Payne maintains that he was merely the landlord who received
$100 per month from the operators of the unlicensed station. Payne
also maintains that he had no access to the equipment used by the
operators of the station. As the San Diego Office determined in the
NAL, Payne provided the garage and real property on which the
operation took place, and provided the electric current used to power
the radio station. Payne substantiates these findings by providing as
part of his Response the lease that he entered into with the operators
of the station, and the statement in his Response that in "early
December 2006, he used the residence's circuit breaker to turn off the
power to the garage and informed his tenants that he would not permit
further operation of any radio broadcasting from his rental property."
Consequently, we find that Payne participated in the operation of the
unlicensed station. Additionally, we have previously held that because
Section 301 of the Act provides that "no person shall use or operate"
radio transmission equipment, liability for unlicensed operation may
be assigned to any individual participating in the operation of the
unlicensed station, regardless of who else may be responsible for the
operation. Taken together, we find that Payne's actions amounted to
willful and repeated violations of Section 301 of the Act.
12. As indicated above, Payne also argues that he shut down the station in
early December 2006, prior to the issuance of the NAL. Payne
acknowledges, however, that he did receive the April 13, 2006, Notice
from the San Diego Office, as well as the visit from the San Diego
agents in June 2006, and further acknowledges that he shut down the
station in December 2006 "to comply with the FCC's demands and
warnings." We find that the San Diego Office gave Payne at least two
opportunities, in April 2006 and June 2006, to immediately shut down
the illegal station operating on his property rather than face
administrative sanctions. The fact that Payne finally did shut down
the station eight months after the initial Notice shows that he did
have control over the station and could have complied with the San
Diego Office's warnings much earlier. Additionally, the Commission
expects violators to implement corrective action to bring past
violations into compliance, and that, therefore, such actions do not
nullify or mitigate past violations. Therefore, we find no merit to
this argument.
13. Further, Payne asks that the proposed forfeiture amount be reduced or
cancelled because he is unable to pay the forfeiture amount. He also
supplies three years of tax records to support his claim that he is
unable to pay the proposed forfeiture amount. Having reviewed Payne's
response along with the supporting financial documentation we
conclude, consistent with precedent, that a reduction of the proposed
forfeiture to $750 is appropriate.
14. Finally, Payne states that if a forfeiture is assessed against him, he
asks for an interview or hearing with a Commission official at the
nearest field office. Nothing in the Act requires the Commission to
provide an unlicensed operator the opportunity for a hearing prior to
imposition of a forfeiture. Rather, under Section 503(b)(4) of the
Act, the Commission must issue a written notice of apparent liability
which specifies each provision of the Act and the rules alleged to be
violated, the facts upon which the charge against the named violator
is based, and the date upon which the alleged violation occurred. The
NAL issued by the San Diego Office fully complied with these
requirements.
15. We have examined Payne's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Payne willfully
and repeatedly violated Section 301 of the Act. Considering the entire
record and the factors listed above, we find that reduction of the
proposed forfeiture is warranted, given Payne's demonstrated inability
to pay. Accordingly, the forfeiture amount is reduced from ten
thousand dollars ($10,000) to seven hundred and fifty dollars ($750).
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Donald J. Payne IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $750 for willfully
and repeatedly violating Section 301 of the Act.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for
full payment 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 Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Donald J.
Payne at his address of record, and Jeremy D. Warren, his counsel of
record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732940002
(Enf. Bur., Western Region, San Diego Office, released December 28, 2006).
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.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(E).
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).
47 U.S.C. S 301.
Jean L. Senatus, 20 FCC Rcd 14418 (EB 2005).
See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875-76 (2002).
See, e.g., Ronald E. Sauer, 19 FCC Rcd 14884 (EB 2004); Kornwell Chan, 16
FCC Rcd 14893 (EB 2001).
Octavio Sarmiento, Jr. 17 FCC Rcd 25277, 25279 (EB 2002). Section 504(a)
of the Act provides that any suit brought by the United States in federal
district court for the collection of a forfeiture imposed pursuant to the
Act shall be a trial de novo. 47 U.S.C. S 504(a).
47 U.S.C. S 503(b)(4). See also Section 1.80(f) of the Rules, 47 C.F.R. S
1.80(f); and Section 1.80(g) of the Rules, which states that procedures
for hearings "will ordinarily be followed only when a hearing is being
held for some reason other than the assessment of a forfeiture ...." 47
C.F.R. S 1.80(g). See Arcom Communications, 20 FCC Rcd 20061 (EB 2005),
affirmed DA 06-1536, 2006 WL 2310791 (rel. August 9, 2006).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2444
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Federal Communications Commission DA 07-2444