******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) John A. Acconey ) NAL/Acct. No. 815PA0001 8 Lexington Court ) Shamong Township, New Jersey 08088 ) ) FORFEITURE ORDER Adopted: September 30, 1998 Released: October 5, 1998 By the Director, Legal Services Group, Compliance and Information Bureau: I. INTRODUCTION 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL") issued on December 18, 1997, to John A. Acconey, and the response filed thereto by Mr. Acconey on February 27, 1998. The NAL proposes imposition of a forfeiture in the amount of $20,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), for violation of Sections 301 and 333 of the Act, 47 U.S.C.  301 and 333. For the reasons noted below, we find that the appropriate amount is $7,000. II. BACKGROUND 2. Since April 1997, the Bureau's Philadelphia, Pennsylvania Field Office had been investigating complaints of interference received from William Bowman Associates, Inc. ("Bowman"). Bowman holds a license to operate a conventional business repeater on the frequency pair 505.2625 MHz (repeater input) and 502.2625 MHz (repeater output) in Vorhees Township, New Jersey under the Call Sign WIG412. Bowman claimed that an unidentified source was "jamming" its radio communications. 3. On November 14, 1997, between approximately 11:20 a.m. and 11:54 a.m., FCC agents from the Philadelphia Field Office, using mobile direction finding techniques, positively detected radio signals on the frequency 505.2625 MHz being transmitted from a green Ford Explorer with New Jersey license plates. The driver of the vehicle later identified himself as Mr. Acconey. The transmissions, which consisted of a "dead carrier," an unmodulated signal with no information, were activating the Bowman repeater on frequency 505.2625 MHz. Using a Trident scanner, the FCC agent heard one of Bowman's employees report that he was having difficulty hearing his employees' transmissions. As another employee tried to respond, the transmissions became garbled. The FCC agent determined that the interference occurred while the Bowman employees were attempting to use the WIG412 repeater. This type of interference, which is called "hetrodyning," occurs when the repeater cannot discriminate between two signals received simultaneously on its input frequency (in this case, 505.2625 MHz). 4. On December 4, 1997, between 7:35 a.m. and 7:55 a.m., two FCC agents from the Bureau's Philadelphia Field Office, using mobile direction finding techniques in separate vehicles, again, detected radio signals on the frequency 505.2625 MHz being transmitted from the same green Ford Explorer with the New Jersey license plates that had been involved in the November 14, 1997 investigation. The vehicle was again being driven by Mr. Acconey. The transmissions, which consisted of a "dead carrier," were again activating the Bowman repeater. 5. Based on the above investigations, on December 18, 1997, the Bureau's Philadelphia Field Office issued an NAL to John A. Acconey for operating a radio transmitter on the frequency of 505.2625 MHz without a valid FCC license and willfully causing harmful interference to the radio communications of a licensed station. III. DISCUSSION 6. In his response to the NAL, Mr. Acconey disputes the finding that he has violated Section 301 of the Act. He argues that as President of Homan Communications ("Homan"), he is an authorized private end-user who has the authority to operate on frequency 505.2625 MHz, the private carrier system licensed to Christina P. Holmes ("Holmes") under the call sign WIL713. Mr. Acconey also denies violating Section 333 of the Act by using his mobile unit to willfully or maliciously interfere with the operation of the WIG412 repeater operated by Bowman. He argues that the evidence was generated by a biased investigation, and furthermore, is insufficient to establish that he willfully or maliciously interfered with the Bowman transmissions on either November 14, 1997 or December 4, 1997. 7. With respect to the Section 301 violation, we find that the evidence of record indicates that Homan Communications was an authorized end-user of the co-channel trunk radio system licensed to both Holmes and Bowman with input frequency 505.2625 MHz and output frequency 502.2625 MHz. Mr. Acconey, as President of Homan Communications, has authority to use the frequency pair under an agreement between Homan and Holmes. We conclude, therefore, that Mr. Acconey's was authorized to transmit on the frequency 505.2625 MHz. 47 C.F.R.  90.185. Accordingly, in that regard, no violation of Section 301 of the Act occurred. 8. Next, we address Mr. Acconey's contention that the investigation of the interference complaints was biased. Mr. Acconey attempts to show bias in the handling of the case by alleging that the FCC investigators ignored his complaints of interference, complaints from the licensee, Holmes, and did not set up monitoring equipment at his base station to confirm interference to his operations. The record indicates that the Philadelphia Field Office considered the allegations of both licensees and monitored the transmissions from both radio stations, WIG412 licensed to Bowman and WIL713 licensed to Holmes. When both radio stations filed a complaint that someone was playing music on the frequency 505.2625 MHz. and "jamming" their radio communications, the FCC Philadelphia Field agents investigated and found that the interfering transmissions were only activating the Bowman repeater. Although the interfering transmissions prevented the Homan Communications trunk radio system from operating on the frequency 505.2625 MHz, we received no direct proof that the users of the trunk system were directly affected. The Philadelphia Field Office concluded based on the record that the interference was a direct attempt to "jam" the radio communications of only the Bowman employees. 9. FCC Philadelphia Field agents installed monitoring equipment at Bowman's repeater site and base station after noticing that the interference appeared to be an attempt to "jam" the radio communications of only the Bowman's employees not the users of the Homan system. The agents also found it significant that installation of the monitoring equipment at the Bowman repeater site did not discourage the source of the interference from continuing to play music and lock-out or "jam" the radio communications of the Bowman employees. In addition, the investigating FCC agent analyzed the signatures obtained from Bowman's mobile radios and compared them to those obtained from the transmitter causing the harmful interference. None of the signatures from the Bowman transmitters matched the signatures obtained during the interfering transmissions. Based on these findings, the Philadelphia Field Office concluded further that it was highly probable that the interference was likely caused by a person other than a Bowman employee. Based on these initial findings, the agents set up a more detailed investigation. We conclude that the FCC investigators, therefore, had probable cause to investigate the operations of Mr. Acconey's system, and acted reasonably in its conduct of the investigation. See Memorandum Opinion and Order in WT Docket No. 94-147, FCC No. 98-207 (released August 24, 1998). 10. We turn next to Mr. Acconey's argument that the evidence is insufficient to establish that he violated Section 333 of the Act. Mr. Acconey contends that the direction finding evidence is inconclusive and does not support a finding of willful or malicious interference. Mr. Acconey argues that the evidence and investigative report are unreliable evidence because they fail to establish that it was his mobile unit, rather than any other mobile system, which was responsible for activating Bowman's repeater on either November 14, 1997 or December 4, 1997. Mr. Acconey further points to the fact that the mobile system he operated was equipped with a "busy signal lock-out" and contends that any interference to Bowman's repeater could only have resulted from Bowman's failure to monitor the frequency before initiating transmissions. He further argues that there are unexplained variations in the report and videotape of the December 4, 1997 surveillance regarding the direction pattern of the transmissions. Mr. Acconey also points to statements made by the investigators during the December 4, 1997 monitoring, which, he maintains, support his argument that this evidence was inconclusive and unreliable. 11. Mr. Acconey contends that the findings of interference based on the November 14, 1997 investigation are unreliable because there was no tape recorded evidence demonstrating the exact bearings and other direction finding data. On November 14, 1997, the investigating FCC agent was driving a government vehicle equipped with Mobile Digital Direction Finding ("MDDF") equipment. This equipment incorporates a VCR which records the bearing and signal strength readings of the radio emissions being tracked with the direction finding equipment. The VCR also serves to record the audio directly from the direction finding receiver, any conversation within the vehicle's cabin, and the video of the traffic in front of the vehicle from a camera mounted on the sun visor. Unlike the December 4, 1998 investigation, which was recorded by the VCR, the November 14, 1997 investigation was not recorded on the VCR component. The investigative record, however, shows that the investigating agent tracked the general direction of the bearings on the direction finding equipment and True North relative to his vehicle's position as he kept up with Mr. Acconey's vehicle. The agent is trained in the use of the MDDF equipment and his determinations were based on this expertise. Direction finding ("DF") experts do not make judgements based on single lines of bearing, but on the total direction finding effort over a period of time. For signals of any appreciable duration, location of radio sources is not accomplished by plotting lines on a map, but by dynamically "homing in" on the source using the MDDF bearings and evaluated by the expert DF operator. The investigative records made by the investigating agent are therefore, reliable and provide sufficient evidence of his investigative findings. 12. Mr. Acconey also claims that there was no proof that he was in his vehicle on November 14, 1997, between the times of 11:20 a.m.and 11:54 a.m., the time during which much of the interference occurred. Mr. Acconey states that because the FCC agent's report implies that the interference was continuous during the monitoring, he could not have been the source. We reject this contention. The investigating FCC agent, followed Mr. Acconey's vehicle and identified him as being the driver during the times he was following the vehicle. The brief periods during which Mr. Acconey was absent from his vehicle could well account for the intermittent periods during which no interference occurred. The agent's observations include the specific times that the interfering transmissions occurred, and noting when the transmissions ceased or resumed. The interference would occur continuously for several minutes and then cease for a few minutes. This pattern occurred several times. This pattern could only lead to a conclusion that the transmissions were intermittent, not continuous. 13. Mr. Acconey's contention that the agent could not have stopped him at 11:54 a.m. on November 14, 1997, is also spurious. The investigating agent recognized Mr. Acconey from previous efforts to resolve interference between the co-channel licensees. Further, the times reported in the agent's report are approximate. In addition, the record of the agent's cell phone usage confirms that the times cited in the Investigative Report are relatively accurate. The cell phone bill from Bell Atlantic Mobile further indicates that on November 14, 1997, the investigating FCC agent made a phone call from the Berlin, New Jersey call area at 11:19 a.m. The agent recalls making this call when he first began detecting the interfering signals on the frequency 505.2625 MHz. The Philadelphia Field Office District Director, answered the telephone and confirmed that the direction finding equipment at the Field Office was detecting the signals. The District Director claimed that the signals were coming from a south-southeast direction relative to True North and the location of the office in Langhorne, Pennsylvania. 14. The cell phone bill also indicates that an incoming cell phone call was received at 12:00 p.m. while the FCC agent was in the Vincetown area. The investigating agent recalls receiving this phone call while Mr. Acconey and the investigating agent were engaged in conversation along the side of the road. At the time, the agent was seated in his vehicle and Mr. Acconey was standing next to the driver-side window of the agent's vehicle. The call was made by an employee of Tektron, a radio vendor company, who was inquiring about an unrelated matter. Mr. Acconey heard the conversation between the agent and the Tektron employee and made a comment that the interference is also affecting the Homan trunk radio system. By letter dated July 1, 1998, the Tektron employee acknowledges making that telephone call to the FCC agent at noon on November 14, 1997. The Tektron employee adds that he recalls hearing the familiar voice of Mr. Acconey while he was conversing with the investigating FCC agent. 15. For the above reasons, we strongly disagree with Mr. Acconey's argument that the record is insufficient to establish that he willfully interfered with Bowman's communications on November 14, 1997. Section 333 of the Act which governs willful or malicious interference, states that no person shall "willfully or maliciously" interfere with or cause interference to any radio communications of any licensed or authorized station. In addition, Section 90.403(e) of the Commission's Rules specifically imposes as an operating requirement that licensees "take reasonable precautions to avoid causing harmful interference." 47 C.F.R.  90.403(e). Subsection (f) further prohibits stations from continuously radiating an "unmodulated carrier" unless specifically permitted under certain exceptions which are here inapplicable. 47 C.F.R.  90.403(f). The pattern of transmissions attributable to Mr. Acconey shows that the transmissions were not accidental, but deliberate. The number of times that Bowman's transmissions were blocked coincided with transmissions traceable to Mr. Acconey's vehicle. The investigative record compiled from the investigating agent's monitoring and direction finding observations demonstrate that the signals emanating from the vehicle were being transmitted on the frequency 505.2625 MHz. Although Mr. Acconey is an authorized user of this frequency, this authorization is subject to the operating requirements of Section 90.403(c) of the Commission's Rules, 47 C.F.R.  90.403(c), which requires that users monitor for on-going communications before using a shared frequency. Although Mr. Acconey makes much of the fact that the Homan/Holmes have installed automatic monitoring systems, these monitoring systems do not prevent the type of interference complained of, i.e. interference to an on-going communication from a dead carrier signal. Mr. Acconey's "lock-out" monitoring system could have prevented him from initiating a communication if it were operating at the time. This type of monitoring system is easily disabled, and would not have prevented Mr. Acconey from initiating an interfering communication. This is one reason for the operating requirements of Section 90.403(c) of the Rules. The record shows that Mr. Acconey's transmissions consisted of a "dead carrier" signal which interfered with Bowman's transmissions. Further, this type of "dead carrier" transmission, which is not intended to make any purposeful communication, is specifically prohibited by Section 90.403(f) of the Rules. 16. For purposes of a forfeiture, Section 333 of the Act requires a showing that the transmissions were either willful or malicious, not both. The evidence is sufficient to establish that Mr. Acconey willfully transmitted a "dead carrier" signal form his vehicle, on November 14, 1997, and that this signal interfered with Bowman's repeater communications. The investigative record demonstrates that the signals were traced directly to Mr. Acconey's vehicle during the times he was operating the vehicle, and ceased when he was stopped by the investigator. For these reasons, we find that the evidence is sufficient to establish that Mr. Acconey violated Section 333 of the Act by willfully interfering with the operation from the repeater being used by Bowman. 17. With respect to the interference that is alleged to have occurred on December 4, 1997, we note Mr. Acconey's challenge of the procedures and techniques used to establish the violation. We do not, however, find it necessary to address these, as the record does not demonstrate that the FCC agents at any time observed any radio communications between Bowman's control station and its mobile units. It is also not ascertainable from the record (including the videotape evidence) whether any of the Bowman employees attempted to transmit on frequency 505.2625 MHz during the investigation of that date. There was no radio receiving equipment tuned to that frequency or monitoring the transmissions from Bowman's repeater, and further, there is no other record to establish that there were transmissions attempted, or being made from any of Bowman's repeaters. We, therefore, agree with Mr. Acconey that the evidence of record is insufficient to establish that he interfered with any on-going transmissions on December 4, 1997. See In the Matters of Imposition of Forfeiture Against Capitol Radiotelephone Inc., 11 FCC Rcd 2335, 2341 (Rev. Bd. 1996). IV. ORDERING CLAUSES 18. IT IS ORDERED, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80(h) of the Commission's Rules, 47 C.F.R.  1.80(h), that John A. Acconey, must FORFEIT the amount of seven thousand dollars ($7,000) within thirty (30) days of receipt of this Order. Payment may be made by check, money order, or credit card drawn on a U.S. financial institution, payable to the Federal Communications Commission. Please place NAL/Acct. No. 815PA0001 on the remittance and mail to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Any responses or appeals of this Forfeiture Order pursuant to 47 C.F.R.  1.106 or 1.115 should be mailed to the Bureau or the Commission, at the following address: Federal Communications Commission Compliance and Information Bureau Legal Services Division Mail Stop 1500-E3 AJC 1919 M Street, N.W. Washington, D.C. 20554 19. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail- return-receipt requested, to John A. Acconey and counsel. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau