Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Joaquim Barbosa ) File Number: EB-08-NY-034
Licensee of Amateur Radio Station ) NAL/Acct. No. 200832380005
) FRN 0017458753
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 26, 2008
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Joaquim Barbosa ("Barbosa"), licensee of amateur radio station
N2KBJ, in Elizabeth, New Jersey, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act") by operating radio transmitting equipment on the frequency
296.550 MHz without Commission authorization. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Barbosa is apparently liable for a forfeiture in the amount of
twenty thousand dollars ($20,000).
2. On January 24, 2008, the Commission received a complaint that an
authorized United States government user was receiving harmful
interference from an unauthorized station operating on 296.550 MHz in
the Elizabeth, New Jersey area. The harmful interference was
obstructing and interfering with a government communications system.
3. On February 1, 2008, an agent from the FCC's New York Office monitored
296.550 MHz using remote monitoring equipment in the New York area and
observed radio transmissions on the frequency in the area of
Elizabeth, New Jersey.
4. On February 5, 2008, using a mobile direction-finding vehicle, an
agent observed transmissions on the frequency 296.550 MHz coming from
the area of Elizabeth, New Jersey. The agent heard the transmissions
while driving in Staten Island, approximately 3.5 miles away from the
source of transmissions that would subsequently be determined. Using
mobile direction-finding techniques, the agent determined that the
source of the transmissions was coming from the vicinity of North
Avenue and Jackson Avenue in Elizabeth, NJ.
5. On both February 6 and 7, 2008, agents again detected transmissions on
the frequency 296.550 MHz and, using mobile direction-finding
techniques, determined that the source of the transmissions was a
private residence at 921 Jackson Avenue, Elizabeth, NJ. On February 7,
an agent confirmed with the complainant that those transmissions were
audible on the government communications system. An agent subsequently
checked the City of Elizabeth Tax Assessor's records and determined
that the owner of the property at 921 Jackson Avenue is Joaquim
Barbosa. The agents observed several antennas of the type used for
amateur radio communications mounted on the house and on the property
in back of the house. An agent later checked the FCC amateur database
and determined that Barbosa holds an Amateur Extra Class license, call
6. On February 11, 2008, agents again detected transmissions on the
frequency 296.550 MHz and, using mobile direction-finding techniques,
determined that the source of the transmissions was the residence at
921 Jackson Avenue. Immediately after determining the source of the
transmissions, the agents conducted a radio station inspection with
Barbosa at the Jackson Avenue residence. During the inspection, agents
positively identified Barbosa from his driver's license. Barbosa also
showed the agents his amateur radio license. During the inspection,
the agents observed a transceiver whose display showed that it was set
to the transmit frequency of 296.550 MHz. The agents measured the
transmitter output power at 17 watts and an output frequency of
296.550 MHz. The agents observed that the transmitter was connected to
an antenna mounted on the back of the house. Barbosa admitted to
operating the station and the transmitting equipment observed during
the inspection for the last four to six months, and stated that he
owned the equipment. As a licensed amateur operator, Barbosa stated
that he knew that the frequency 296.550 MHz was not an authorized U.S.
amateur frequency and he knew that he did not have a license to
operate on the frequency. The agents advised Barbosa of the violation
for operation of the unlicensed station and informed him that his
operation was causing harmful interference to a U.S. Government
system. The agents issued a hand-delivered Notice of Unlicensed
Operation to Barbosa which he signed as acknowledgement of receipt.
7. According to Commission records, Joaquim Barbosa, 921 Jackson Avenue,
Elizabeth, New Jersey, 07201, was issued an Amateur Extra Class,
amateur radio operator license, call sign N2KBJ, on August 31, 1998,
which will expire on August 31, 2008. Pursuant to Section 97.103(a) of
the Rules, licensed amateur radio operators are responsible for the
proper operation of their stations in accordance with the Commission's
Rules. Licensed amateur operators are authorized to operate on the
frequencies listed Section 97.301 of the Rules, as designated by their
operator class and license. In order to use designated frequencies in
the amateur bands, amateur operators must follow the frequency sharing
requirements in Section 97.301 of the Rules and the United States
Table of Frequency Allocations found in Sections 2.105 and 2.106 of
the Rules. Pursuant to the Table of Allocations, the 267-322 MHz Band
is allocated solely for Federal Government use. In the band 255 -
328.6 MHz, the fixed and mobile services are limited to the military
services. The use of the band 235 - 322 MHz is allocated on a primary
basis to the mobile-satellite service, limited to military operations.
Based on the agents' experience with the observed signal levels,
transmitter power, antennas and the distance over which the signals
were heard, the agents determined that the signals broadcast on
February 5, 6, 7 and 11, 2008 exceeded the limits for operation under
Part 15 of the Commission's Rules ("Rules") and therefore required a
license. As a non-governmental entity, Barbosa is not eligible to
receive a license to operate in the 267-322 MHz Band.
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) of the Act 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. In particular, Section 301
states that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio (a) 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; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." FCC agents determined that, on
February 6, 7 and 11, 2008, an unlicensed radio station operated on
296.550 MHz from Barbosa's residence in Elizabeth, New Jersey. During
an inspection on February 11, 2008, Barbosa admitted to operating
radio transmitting equipment on 296.550 MHz from his residence for the
last four to six months. Barbosa also admitted to the agents that he
knew he was operating on a frequency that was not authorized for use
by amateur licensees. Based on the evidence before us, we find that
Barbosa apparently willfully and repeatedly violated Section 301 of
the Act by operating radio transmission apparatus without a license.
10. 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 operation without an instrument of
authorization for the service 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, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Based on the criteria in Section 503(b)(2)(D) of the Act,
and the upward adjustment criteria in the Forfeiture Policy Statement,
we find that an upward adjustment in the amount of $10,000 is
warranted. Because Barbosa holds an Amateur Extra Class license, which
requires the highest level of technical knowledge and affords the
licensee the most frequency privileges, we find that his apparent
willful and repeated operation on an unauthorized frequency that
caused harmful interference to a United States government
communications system is particularly egregious. Applying the
Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that Barbosa is
apparently liable for a $20,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Joaquim Barbosa is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty thousand dollars ($20,000) for violations of Section 301 of the
12. 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, Joaquim Barbosa SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
13. 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[s] 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014 and must include the NAL/Acct. No.
referenced in the caption.
15. 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.
16. 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 Joaquim Barbosa at his address of
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
U.S.C. S: 301.
47 U.S.C. S: 503(b).
In accordance with Part 97 of the Commission's Rules, operation of an
amateur station requires an amateur operator license grant from the FCC.
Before receiving a license grant, an applicant must pass an examination
which contains one telegraphy (Morse Code) element and three written
elements which establish the applicant's level of operational and
technical ability in performing properly the duties of an amateur service
licensee. The class for which each examinee is qualified is determined by
the degree of skill and knowledge in operating a station that the examinee
demonstrates at the examination. There are six classes of amateur
operator licenses. The higher the license class, the more expertise the
licensee must demonstrate and the greater the frequency privileges the
amateur operator is authorized. In ascending order, the classes of amateur
operator license grants are: Novice, Technician, Technician Plus, General,
Advanced and Amateur Extra. See 1998 Biennial Regulatory Review -
Amendment of Part 97 of the Commission's Amateur Service Rules, 13 FCC Rcd
47 C.F.R. S: 97.103(a).
47 C.F.R. S: 97.301.
See 47 C.F.R. S: 97.303, citing Sections 2.105, 2.106 of the Rules.
See 47 C.F.R. S: 2.106.
47 C.F.R. S: 2.106, Federal Government Footnote G27.
47 C.F.R. S: 2.106, Federal Government Footnote G100.
Section 15.209 of the Rules provides that non-licensed broadcasting in the
216-960 MHz band is permitted only if the field strength of the
transmission does not exceed 200 mV/m at three meters. 47 C.F.R. S:
15.209. Devices compliant with Part 15 typically have a range of less than
one mile and are certified for use by the FCC for power levels less than
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: 301.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b)(2)(D); 47 C.F.R. S: 1.80(b)(4); see also Forfeiture
Policy Statement, 12 FCC Rcd at 17100 - 01.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
(...continued from previous page)
Federal Communications Commission
Federal Communications Commission