Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of File No: EB-09-HU-0051
)
Raymond Frank NAL/Acct. No. 200932540003
)
Austin, Texas FRN 0019027234
)
)
)
FORFEITURE ORDER
Adopted: November 5, 2009 Released: November 9, 2009
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 ten thousand dollars ($10,000) to Raymond Frank for
willful and repeated violation of Section 301 of the Communications
Act of 1934, as amended ("Act"). The noted violations involve Mr.
Frank's operation of an unlicensed radio transmitter on the frequency
90.1 MHz in Austin, Texas.
II. BACKGROUND
2. On January 23, 2007, in response to a complaint about an unlicensed
radio station in the Austin, Texas area, agents from the Commission's
Dallas Office of the Enforcement Bureau ("Dallas Office") confirmed by
direction finding techniques that signals on the frequency 100.1 MHz
were emanating from Mr. Frank's residence in Austin, Texas.
3. On February 22, 2007, the Dallas Office issued a Notice of Unlicensed
Operation to Mr. Frank warning him that the radio transmissions on
100.1 MHz from his residence were not authorized by the Commission and
outlining possible penalties for continued unlicensed operation. On
March 5, 2007, the Dallas Office received a reply from Mr. Frank
stating the transmissions had ceased.
4. On July 22, 2009, in response to a complaint about an unlicensed radio
station in the Austin, Texas area, agents from the Commission's
Houston Office of the Enforcement Bureau ("Houston Office") confirmed
by direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Mr. Frank's residence in Austin, Texas. The agents
took field strength measurements of the signals and determined the
signals exceeded the limits for operation under Part 15 of
Commission's Rules ("Rules") and therefore, required a license. A
search of the Commission's databases found no evidence of a Commission
authorization for operation on 90.1 MHz at this location in Austin,
Texas.
5. On August 3, 2009, agents from the Commission's Houston Office of the
Enforcement Bureau again confirmed by direction finding techniques
that signals on the frequency 90.1 MHz were emanating from Mr. Frank's
residence in Austin, Texas. The agents took field strength
measurements of the signals and determined the signals exceeded the
limits for operation under Part 15 of the Rules and therefore,
required a license. A search of the Commission's databases found no
evidence of a Commission authorization for operation on 90.1 MHz at
this location in Austin, Texas.
6. On August 13, 2009, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Frank in the amount of ten thousand
dollars ($10,000), for the apparent willful and repeated violation of
Section 301 of the Act. Mr. Frank submitted responses to the NAL
denying that the Commission has jurisdiction over this matter and
requesting that the matter be dropped.
III. DISCUSSION
7. 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 Mr. Frank'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.
8. 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. On
July 22 and August 3, 2009, agents from the Houston Office determined
that an unlicensed radio station on 90.1 MHz operated from Mr. Frank's
residence. Mr. Frank was aware that such action violated the Act, as
he received a Notice of Unlicensed Operation on February 22, 2007 for
operating an unlicensed radio station from his residence. In his
response to the NAL, Mr. Frank did not deny any of these facts. Mr.
Frank also stated that he "has ceased all transmissions and has no
plans to transmit in the future." Thus, based on the evidence before
us, we find that Mr. Frank willfully and repeatedly violated Section
301 of the Act by operating radio transmission apparatus without a
license on July 22, 2009 and August 3, 2009.
9. In his response to the NAL, Mr. Frank asserts that, as a citizen of
the Republic of Texas, he is not subject to the laws of the United
States or the Commission's Rules. Specifically, Mr. Frank asserts that
the Commission lacks jurisdiction over his actions, because he
operated a radio station solely within the boundaries of the state of
Texas. Finally, Mr. Frank justifies violating Section 301 of the Act,
because he claims the Commission's licensing policies violate the
First Amendment.
10. Section 301 of the Act explicitly sets forth the Commission's
jurisdiction over all radio transmissions, both interstate and
intrastate. 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 "from one place in any State, Territory, or
possession of the United States or in the District of Columbia to
another place in the same State, Territory, possession, or District,"
or from one place within a State to another State without a license.
Thus, contrary to Mr. Frank's assertion, the Commission does not lack
jurisdiction over the use of radio transmitting equipment within the
State of Texas. Moreover, the U.S. Supreme Court has repeatedly held
that there is no constitutional right to use radio facilities without
a license. Issuing a forfeiture for operating a radio station without
a license simply represents the enforcement of the Act, not some
abridgement of Mr. Frank's Constitutional rights.
11. We have examined Mr. Frank'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 find no basis for
cancellation or reduction of the $10,000 forfeiture proposed for this
violation.
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 and
1.80(f)(4) of the Commission's Rules, Raymond Frank IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars ($10,000)
for violations of Section 301 of the Act.
13. 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. The payment must include the NAL/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Mr. Frank will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Raymond Frank at
his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
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 uV/m at three meters. 47 C.F.R. S:15.239.
On July 22, 2009, field strength measurements indicated that the signals
were 13,048 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
On August 3, 2009, field strength measurements indicated that the signals
were 15,434 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932540003
(Enf. Bur., Houston Office, August 13, 2009) ("NAL").
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: 301.
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).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
See Joseph Frank Ptak, Decision, 14 FCC Rcd 9317, 9320, para. 13 (1999).
See also U.S. v. Butterfield, 91 F.Supp.2d 704 (D.VT 2000).
47 U.S.C. S: 301.
We also note that Texas is a "State" of the United States of America, and
it and its residents are subject to the laws of the United States.
According to the to the Texas Historical Commission, Texas was annexed to
the United States as the 28th state on December 29, 1845; Texas seceded
from the United States and joined the Confederate States of America on
January 28, 1861; and Texas officially was readmitted to the Union on
March 30, 1870, following the period of Reconstruction . See
http://www.thc.state.tx.us/triviafun/trvgov.shtml. Because Texas is a
State, Mr. Frank's invocation of the Foreign Sovereign Immunities Act is
misplaced.
See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969); National
Broadcasting Co. v. U.S., 319 U.S. 190, 227 (1943).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2390
2
Federal Communications Commission DA 09-2390