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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number: EB-FIELDSCR-12-00004683
)
Thomas Costa NAL/Acct. No.: 201332560001
)
Iowa City, IA FRN: 0022089429
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 19, 2012 Released: October 19, 2012
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Thomas Costa apparently willfully and repeatedly violated Section
301 of the Communications Act of 1934, as amended (Act), by operating
an unlicensed radio transmitter on the frequency 87.9 MHz in Iowa
City, Iowa. We conclude that Mr. Costa is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On September 17, 2012, in response to a complaint, agents from the
Enforcement Bureau's Kansas City Office (Kansas City Office) used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 87.9 MHz to an FM transmitting antenna
mounted on a chimney of a residence in Iowa City, Iowa. The agents
determined that the signals on 87.9 MHz exceeded the limits for
operation under Part 15 of the Commission's rules (Rules), and
therefore required a license. The Commission's records showed that no
authorization was issued to Mr. Costa or to anyone else for operation
of an FM broadcast station at or near this address.
3. On September 18, 2012, agents from the Kansas City Office again used
direction-finding techniques to confirm if the station was still
operating on 87.9 MHz from the same location, and found that it was.
The agents, accompanied by the property owner, inspected the
unlicensed station's antenna and transmitter, which was located in a
locked basement room in the Iowa City residence. The station was
automated with a computer providing audio to a non-certified FM
transmitter. The property owner stated that Mr. Costa rented the
basement room housing the station. Later that day, the agents
interviewed Mr. Costa, who admitted that he rented the basement room
and installed the radio station equipment. Mr. Costa, however, denied
operating the unlicensed station, and claimed that several unnamed
individuals owned the equipment and gave him rent money each month
which he, in turn, gave to the property owner to pay the rent. 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. 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 order him to cease
operations.
III. DISCUSSION
4. 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. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Unlicensed Broadcast Operation
5. 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.
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." In other words, the use of the word
"operate" in Section 301 captures not just the "actual, mechanical
manipulation of radio apparatus," but also operation of a radio
station generally. 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."
6. We find that the record evidence in this case is sufficient to
establish that Mr. Costa violated Section 301 of the Act. On September
17 and 18, 2012, agents from the Kansas City Office determined that an
unlicensed station on the frequency 87.9 MHz operated from a basement
room in a residence in Iowa City, Iowa. A review of the Commission's
records revealed that no license or authorization was issued to anyone
to operate a radio station on 87.9 MHz at this location. Under Section
301, Mr. Costa can be said to have "operated" the unlicensed radio
station on 87.9 MHz because the evidence shows that Mr. Costa
exercised control over the general conduct or management of the
station despite his claim that other individuals, who he refused to
identify, were operating the station. In this regard, Mr. Costa
admitted that he rented (and paid the monthly rental for) the locked
basement room housing the unlicensed station, and that he installed
the station equipment. Further, during the interview, Mr. Costa
mentioned that he was warned about the unlawfulness of the operation
by unnamed individuals, who told him that he could expect the
Commission to inspect the station and order him to cease operations at
some point. Assuming the statement to be true, it appears that, in
spite of the warning, Mr. Costa nonetheless allowed the station to
continue to operate in his basement. The foregoing facts indicate that
Mr. Costa consciously operated and/or otherwise was involved in the
general conduct or management of the unauthorized station.
7. Although not critical to our determination that Mr. Costa violated
Section 301, we do not find his claim persuasive that other
individuals (and not he) operated the station. On this issue, Mr.
Costa refused to provide the names and contact information of the
(alleged) other individuals or to provide any other information to
corroborate his claim. In addition, we find it implausible that Mr.
Costa (or anyone for that matter) would install radio equipment, rent
space, allow for unlawful operations in the rented space, and incur
potential financial and other liability on behalf of complete
strangers. We therefore conclude, based on the evidence before us,
that Mr. Costa apparently willfully and repeatedly violated Section
301 of the Act by operating radio transmission equipment without the
required Commission authorization.
B. Proposed Forfeiture Amount
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation 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)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Costa is apparently liable for a forfeiture in the amount of
$10,000.
IV. ORDERING CLAUSES
9. 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, Thomas Costa is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Section 301 of the
Act.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Thomas Costa
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Thomas Costa will also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. 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:
* 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.
* 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.
* 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. 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.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor,
Lees Summit, Missouri 64086-4711, and include the NAL/Acct. No.
referenced in the caption. Thomas Costa also shall e-mail the written
response to SCR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to Thomas Costa at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
District Director
Kansas City Office
South Central Region
Enforcement Bureau
47 U.S.C. S:301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, Section 15.209 of the Rules provides that
non-licensed broadcasting in the 30-88 MHz band is permitted only if the
field strength of the transmission does not exceed 100 mV/m at three
meters. 47 C.F.R. S: 15.209.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
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).
Id.
Id. See also 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
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).
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) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-1686
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Federal Communications Commission DA 12-1686