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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-09-HU-0065
Jerry and Deborah Stevens ) NAL/Acct. No. 201032540002
Austin, Texas ) FRN 0019271485
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 10, 2009
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jerry and Deborah Stevens 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
90.1 MHz in Austin, Texas. We conclude, pursuant to Section 503(b) of
the Act, that Jerry and Deborah Stevens are apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 27, 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 Jerry and Deborah Stevens' 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.
3. On August 31, 2009, the Houston Office issued a Notice of Unlicensed
Operation to Jerry and Deborah Stevens warning them that the radio
transmissions on 90.1 MHz from their residence were not authorized by
the Commission and outlining possible penalties for continued
unlicensed operation. On September 14, 2009, the Houston Office
received a reply from Jerry and Deborah Stevens acknowledging receipt
of the Notice of Unlicensed Operation and requesting additional time
to provide information. Jerry and Deborah Stevens were granted an
additional thirty days to provide the Commission with information
concerning authority to operate on the frequency 90.1 MHz from their
residence.
4. On September 21, 2009, agents from the Houston Office confirmed by
direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Jerry and Deborah Stevens' 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.
5. On October 16, 2009, an agent from the Houston Office again confirmed
by direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Jerry and Deborah Stevens' residence in Austin,
Texas. The agent took field strength measurements of the signals and
determined the signals exceeded the limits for operation under Part 15
of the Rules.
6. On October 19, 2009, the Houston Office received a second response to
the Notice of Unlicensed Operation from Jerry and Deborah Stevens. In
this response, Jerry and Deborah Stevens admitted operating radio
transmitting equipment only within the boundaries of the State of
Texas, and questioned the Commission's jurisdiction over intrastate
communications.
III. DISCUSSION
7. 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.
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, specifically "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, except under and in accordance with the Act and with a license
granted under the provisions of the Act. Thus, Section 301 of the Act
explicitly sets forth the Commission's jurisdiction over all radio
transmissions, both interstate and intrastate. On August 27, September
21, and October 16, 2009, agents from the Houston Office determined
that unlicensed radio transmissions on the frequency 90.1 MHz
originated from Jerry and Deborah Stevens' residence. Jerry and
Deborah Stevens were notified that the unlicensed radio transmissions
violated the Act by a Notice of Unlicensed Operation dated August 31,
2009. Jerry and Deborah Stevens did not deny that they operated an
unlicensed radio station from their residence, and admitted to
operating a radio station solely within the borders of Texas. Based on
the evidence before us, we find that Jerry and Deborah Stevens
apparently willfully and repeatedly violated Section 301 of the Act by
operating radio transmission apparatus without a license on September
21, 2009 and October 16, 2009.
9. 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 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 of the
Rules, and the statutory factors to the instant case, we conclude that
Jerry and Deborah Stevens are apparently liable for a $10,000
forfeiture.
IV. ORDERING CLAUSES
10. 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, Jerry and Deborah Stevens
are hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
301of the Act.
11. 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, Jerry and Deborah Stevens
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Jerry and Deborah Stevens
will send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road, #362, Houston, Texas, 77065 and must include the
NAL/Acct. No. referenced in the caption.
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 Certified Mail, Return Receipt
Requested, and regular mail, to Jerry and Deborah Stevens at their
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent,
Houston Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
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 August 27, 2009, field strength measurements indicated that the signals
were 1,110 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
On September 21, 2009, field strength measurements indicated that the
signals were 1,225 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
On October 16, 2009, field strength measurements indicated that the
signals were 1,547 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
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.
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).
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: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission