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 )
Daniel K. Roberts ) File Number: EB-09-SF-0031
a/k/a "Monkey Man" ) NAL/Acct. No.: 200932960004
a/k/a "Monkey " ) FRN: 0019070572
San Francisco, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 31, 2009
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Daniel K. Roberts a/k/a "Monkey Man" a/k/a "Monkey," ("Roberts")
in San Francisco, California, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended,
by operating an unlicensed broadcast radio station on 87.9 MHz in San
Francisco, California. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Roberts is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. Roberts is the operator of Pirate Cat Radio ("PCR") which operates a
radio broadcast station without a license issued by the FCC on 87.9
MHz in San Francisco, California. Roberts is also the executive of the
Pirate Cat Cafe and Studio located at 2781 21st Street, San Francisco,
California. In 2008, Roberts began operating PCR from a radio studio
located at the Pirate Cat Cafe and Studio. According to the PCR
website (www.piratecatradio.com), which prominently features Roberts,
PCR describes itself as "unlicensed low powered community radio"
located at the same address as the Pirate Cat Cafe and Studio. The
Enforcement Bureau's San Francisco Office has issued numerous warnings
and Notices of Unlicensed Operation (NOUOs) to Roberts and PCR
concerning unlicensed radio operations and detailing the potential
penalties for operating an unlicensed radio station, and for further
violations of the Communications Act and FCC rules.
3. On April 28, 2009, agents from the San Francisco Office, using radio
direction-finding methods, determined that the transmission source of
a radio signal on 87.9 MHz was an antenna on the roof of a residence
at 841 Corbett Avenue, San Francisco, California. The agents took
field strength measurements of the signals and determined the signals
being broadcast exceeded the limits for operation under Part 15 of the
Commission's Rules ("Rules") and therefore required a license.
Searches of the Commission databases found no evidence of a Commission
authorization for this operation on 87.9 MHz in San Francisco,
California.
4. On April 29, 2009, agents from the San Francisco Office, using radio
direction-finding methods, determined that the transmission source of
the unlicensed radio signals on 87.9 MHz was once again the antenna on
the roof of 841 Corbett Avenue, San Francisco, California. The agents
took field strength measurements of the signals and again determined
the signals being broadcast exceeded the limits for operation under
Part 15 of the Rules, and therefore required a license. Previous
searches of the Commission databases found no evidence of a Commission
authorization for this operation on 87.9 MHz in San Francisco,
California. Later on April 29, 2009, the agents observed Roberts
operating and controlling the unlicensed radio station on 87.9 MHz
from the Pirate Cat Cafe and Studio, at 2781 21st Street, San
Francisco, California. The agents subsequently monitored PCR and
located the signal again emanating from 841 Corbett Avenue, San
Francisco, California. The agents identified Roberts as the voice on
the unlicensed transmissions on 87.9 MHz.
III. DISCUSSION
5. 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) 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.
6. 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.
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 things the receipt, forwarding, and delivery
of communications) incidental to such transmission."6 On April 28 and
29, 2009, FCC San Francisco agents determined that an unlicensed radio
station was transmitting on 87.9 MHz from 841 Corbett Avenue in San
Francisco, California. On April 29, 2009, the San Francisco agents
determined that the station was controlled from the Pirate Cat Cafe
and Studio, 2781 21st Street, San Francisco, California, with Roberts
operating the station and providing services incidental to the
provision of the transmission of PCR on 87.9 MHz.7 Despite numerous
warnings, Roberts has continued to operate PCR without a license
issued by the FCC. Therefore, Roberts' violation was willful. The
violation occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Roberts apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission apparatus without a license on 87.9 MHz in San
Francisco, California.
7. 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 of a radio transmitter 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, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that
Roberts is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, Daniel K. Roberts a/k/a
"Monkey Man" a/k/a "Monkey" 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 Communications Act of
1934, as amended.
9. 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, Daniel K. Roberts a/k/a
"Monkey Man" a/k/a "Monkey," SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. 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. Daniel K. Roberts a/k/a "Monkey Man"
a/k/a "Monkey" will also send electronic notification on the date
said payment is made to WR-Response@fcc.gov.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Francisco Office,
5653 Stoneridge Drive, Suite 105, Pleasanton, CA 94588-8543 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
12. 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.
13. 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 Daniel K. Roberts a/k/a "Monkey Man"
a/k/a "Monkey."
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
The PCR website also mistakenly claims its unlicensed operation is
sanctioned by Section 73.3542 of the Rules, 47 C.F.R. S: 73.3542. We note
that authority to operate pursuant to this Section must be granted by the
FCC, and that the burden is on the applicant to show the required
"extraordinary circumstances" to support such a grant. A-O Broadcasting
Corporation, 23 FCC Rcd 603, 614 (2008). There is no record that Roberts
and PCR have ever received such a grant of authority from the Commission.
Additionally, the frequency used without authority by Roberts and PCR is
87.9 MHz, which is not allocated to the FM broadcast band. See Section
73.201 of the Rules, 47 C.F.R. S: 73.201.
See, e.g., Notice of Unlicensed Operation to Daniel K. Roberts, (San
Francisco Office, March 7, 2006); Notice of Unlicensed Operation to Jason
Seifert, (San Francisco Office, April 20, 2006); Notice of Unlicensed
Operation to Josh Goodwin, (San Francisco Office, June 27, 2006); Notice
of Unlicensed Operation to Alexander Ness, (San Francisco Office, March
29, 2007); On-Scene Notice of Unlicensed Operation, (San Francisco
Office, August 18, 2008).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88 to 108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
15.239. Fundamental emissions from intentional radiators are not permitted
in the band 76 to 88 MHz. 47 C.F.R. S: 15.209(a). On April 28, 2009, the
measurements indicated that the signal was more than 4,000 times greater
than the maximum permissible level for a non-licensed Part 15 transmitter
in the 88 to 108 MHz band and more than 10,000 times greater than the
maximum permissible level in the 76 to 88 MHz band.
On April 29, 2009, the measurements indicated that the signal was more
than 3,000 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter in the 88 to 108 MHz band and more than
8,000 times greater than the maximum permissible level in the 76 to 88 MHz
band.
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."
6 47 U.S.C. S: 153(33).
7 See Joni K. Craig, 21 FCC Rcd 10793 (EB 2006).
12 FCC Rcd 17087 (1997), recon. 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: 503(b), 301; 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
4
Federal Communications Commission