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                        )    
                              )
                              )    File No. EB-01-LA-142
                              )
California Speedway                )    NAL/Acct. No. 
200232900002
Fontana, California                )
                              )    FRN# 0006-0339-97


                        FORFEITURE ORDER

     Adopted:  November 12, 2002                       Released:  
November 14, 2002

By the Chief, Enforcement Bureau:

                          INTRODUCTION

      In this Forfeiture Order (``Order''), we issue a  monetary 
       forfeiture  in  the  amount  of  eight  thousand   dollars 
       ($8,000) to California  Speedway for willful violation  of 
       Section  301  of  the  Communications  Act  of  1934,   as 
       amended1  (the  ``Act'').  The  noted  violation  involves 
       operation  of  an  unlicensed  radio  transmitter  on   FM 
       broadcast frequency 104.7 MHz.

     2.   On  May  30,  2002,   the  District  Director  of   the 
Enforcement  Bureau's  Los  Angeles,  California  Office   (``Los 
Angeles Office'')  issued  a  Notice of  Apparent  Liability  for 
Forfeiture  (``NAL'')  finding  California  Speedway   apparently 
liable for  a forfeiture  in the  amount of  $10,000 for  willful 
violation  of  Section  301  of  the  Act.2   On  July  1,  2002, 
California Speedway filed a response.3  

                           BACKGROUND

     3.   On November 2, 2001, the Los Angeles Office received  a 
       complaint  alleging  that California  Speedway,  which  is 
       located  in Fontana,  California,  was operating  a  radio 
       station on  frequency 104.7  MHz.  An agent  from the  Los 
       Angeles   Office  searched   the  Federal   Communications 
       Commission's (``FCC'' or ``Commission'') license  database 
       which revealed no  license issued for the operation of  an 
       FM broadcast  station on 104.7 MHz  in or around  Fontana, 
       California  and  no  broadcast  authorization  issued   to 
       California Speedway.4  On November 8, 2001, an agent  from 
       the Los  Angeles Office  spoke on the  telephone with  the 
       Director  of  Operations  for  California  Speedway.   The 
       Director  of Operations  stated that  California  Speedway 
       operates  a one-watt  transmitter on  the frequency  104.7 
       MHz and that the transmitter was used only during events.  

     4.   On November 14,  2001, the  Los Angeles  Office sent  a 
       Notice  of   Unlicensed  Radio  Operation  to   California 
       Speedway.5  The Notice warned California Speedway that  it 
       may be  operating a radio station  on frequency 104.7  MHz 
       without a  license in  violation of  47 U.S.C.   301  and 
       that  such  operation  could  result  in  penalties.   The 
       Notice   directed  the   operator   of  the   station   to 
       discontinue  operation  immediately if  it  was  operating 
       without  an authorization.   California Speedway  did  not 
       submit a written response to the Notice.

     5.   On March 22, 2002, an agent from the Los Angeles Office 
       once again  spoke on  the telephone with  the Director  of 
       Operations   for   California   Speedway.    During    the 
       conversation, the agent orally advised that the  operation 
       of the unlicensed radio station on 104.7 MHz could  result 
       in a monetary forfeiture.  

     6.   On March 24, 2002, agents  from the Los Angeles  Office 
       conducted an investigation at California Speedway.   Using 
       a  FCC  Mobile  Digital  Direction  Finding  vehicle   and 
       direction finding  techniques, the  agents detected  radio 
       transmissions on  frequency 104.7 MHz  from a location  in 
       the middle of  the grounds of California Speedway.   Field 
       strength measurements  revealed that  the radio  emissions 
       exceeded  the levels  allowed for  non-licensed  operation 
       under   Sections   15.209(a)   and   15.239(b)   of    the 
       Commission's  Rules  (``Rules'').6   The  measured   field 
       strength was  63,500 V/m or 254  times that permitted  by 
       the rules.

     7.   California Speedway argues that the facts cited in  the 
       NAL  do not  support the  conclusion  that it  engaged  in 
       unlicensed operation.7  It argues that the NAL cites  only 
       that California Speedway's equipment exceeded  permissible 
       emission  limits.8   Although,  according  to   California 
       Speedway,   this  suggests   a  possible   violation   for 
       unauthorized emissions or exceeding power limits, this  is 
       insufficient evidence to establish unlicensed  operation.9  
       California Speedway also  claims that it was not  provided 
       with documentation  of the March  24 measurement and  thus 
       it cannot assess whether or not the violation occurred  or 
       whether  imposition  of the  base  forfeiture  amount  was 
       justified.10  California Speedway also claims that it  was 
       never  told that  it  was prohibited  from  operating  the 
       equipment.11

     8.   California  Speedway   next   argues   that,   assuming 
       arguendo, a violation of 47 U.S.C.
  301  occurred,  the  NAL  did  not  take  into  account  facts 
warranting  reduction  or   cancellation  of  the   forfeiture.12  
California Speedway argues that  the violation was minor  because 
there is no evidence  of substantial harm to  any third party  or 
that the  violation  was  egregious,  continuing  or  repeated.13  
Further, it  argues that  there is  no evidence  that  California 
Speedway derived substantial gain from the operation or that  the 
violation was intentional.14 

     9.   Next, California Speedway claims that ``[a]t all times, 
       the  Speedway  operated the  equipment  in  a  good  faith 
       attempt to comply with Part 15 rules.''15  It argues  that 
       the equipment was recommended to it as providing  enhanced 
       public  address  features  which  it  was  interested   in 
       providing and  that when  it acquired  the equipment  ``it 
       believed  that   equipment  to  be   compliant  with   FCC 
       equipment  rules for  use on  an  unlicensed basis  on  FM 
       frequencies   including   those   with   public    address 
       systems.''16   California  Speedway states  that  when  it 
       originally  purchased   the  equipment  the   manufacturer 
       advised it  to turn down the  unit's output control if  it 
       received any complaints of interference during use of  the 
       equipment.17   California  Speedway also  states  that  it 
       selected 104.7  MHz because the  closest FM radio  station 
       operating on that frequency was 70 miles away and thus  it 
       believed  that  that  station  was  beyond  the  range  of 
       possible  interference.18   Finally,  California  Speedway 
       argues that  it has a history  of overall compliance  with 
       the Commission's rules.  

                           DISCUSSION

     10.  The forfeiture  amount in  this  case was  assessed  in 
       accordance with Section 503(b) of the Act,19 Section  1.80 
       of the  Rules,20 and the   Commission's Forfeiture  Policy 
       Statement and  Amendment of Section 1.80  of the Rules  to 
       Incorporate  the Forfeiture  Guidelines.21   In  examining 
       California Speedway's response, Section 503(b) of the  Act 
       requires  that  the  Commission  take  into  account   the 
       nature,   circumstances,  extent   and  gravity   of   the 
       violation and, with  respect to the violation, the  degree 
       of culpability, any history of prior offenses, ability  to 
       pay, and other such matters as justice may require.22

     11.  We  reject  California  Speedway's  argument  that  the 
       evidence  does  not   support  a  finding  of   unlicensed 
       operation.  Section 301  of the Act prohibits  ``operation 
       of  any  apparatus  for  the  transmission  of  energy  or 
       communications or  signals by  radio except  under and  in 
       accordance  with this  Act  and  with a  license  in  that 
       behalf granted under  provisions of the Act.''23   Section 
       15.1(a) of  the Rules,  24 provides  that Part  15 of  the 
       Rules  25  sets   out  the  regulations  under  which   an 
       intentional  radiator   (e.g.,  a  low   power  FM   radio 
       transmitter),  may  be  operated  without  an   individual 
       license.   Section  15.1(b) of  the  Rules  provides  that 
       ``operation of an intentional ... radiator that is not  in 
       accordance  with the  regulations  in this  part  must  be 
       licensed pursuant  to the provisions  of [S]ection 301  of 
       the Communications  Act of 1934.''26   Thus, by the  clear 
       wording of this rule,  in order to be exempt from  Section 
       301's license  requirement, an  intentional radiator  such 
       as a  low power FM radio  transmitter must be operated  in 
       accordance  with   Part  15.   Otherwise,  the   operation 
       requires a license. 

     12.  Pursuant  to  Section  15.239(b)  of  the  Rules,  non-
       licensed low power  operation in the FM Band (88-108  MHz) 
       is  permitted   only  if   the  field   strength  of   the 
       transmissions  does  ``not  exceed  250   microvolts/meter 
       (``V/m'')   at  three   meters.''27   The   investigation 
       conducted by  the Los Angeles  Office found the  station's 
       field strength  to measure 63,500  V/m when  extrapolated 
       to three  meters.  Thus,  the measured  field strength  of 
       California Speedway's  operation exceeded the  permissible 
       Part 15  level for a non-licensed  low power FM  operation 
       (250  V/m at  three  meters) by  254  times.   Therefore, 
       California  Speedway's operation  of the  transmitter  was 
       not ``in accordance with the regulation'' in Part 15.   As 
       a result, under  Section 15.1(b) of the Rules,  California 
       Speedway's  radio  operation required  a  license.   Since 
       California Speedway  had no  license to  operate at  104.7 
       MHz  with  this field  strength,  its  operation  violated 
       Section 301 of the Act.  California Speedway's claim  that 
       it  intended to  operate  the  station under  Part  15  is 
       irrelevant since the standard articulated in Section  15.1 
       turns on whether the transmitter is, in fact, operated  in 
       accordance with Part  15; not whether California  Speedway 
       intended  to operate  the  radio station  under  Part  15.  
       Accordingly,   we  conclude   that   California   Speedway 
       willfully violated Section 301 of the Act when it  engaged 
       in unlicensed  operation of a  radio station on  frequency 
       104.7 MHz.28

     13.  We conclude that a forfeiture  in the amount of  $8,000 
       is warranted in light of California Speedway's history  of 
       overall  compliance  with the  Commission's  rules.29   We 
       disagree with  California Speedway's  argument that  other 
       factors  warrant a  cancellation or  further reduction  of 
       the  forfeiture.   In  particular,  we  reject  California 
       Speedway's argument that  it acted in good faith.  To  the 
       contrary, there  is no evidence  that California  Speedway 
       took steps to  ensure that its radio operation was  within 
       the  parameters   imposed  by  Part   15.   For   example, 
       California Speedway  has not demonstrated  that it  tested 
       the equipment  or monitored the  field strength to  ensure 
       that the  operation did  not exceed the  Part 15  emission 
       limits.30  We  are particularly concerned that  California 
       Speedway failed to  take these steps even after  receiving 
       notice  in  November 2001  from  the  Los  Angeles  Office 
       regarding   the  unlicensed   operation.    Further,   the 
       existence  of  this Notice  coupled  with  the  fact  that 
       California Speedway's  Director of  Operations was  orally 
       advised of the  consequence of unlicensed operation  prior 
       to  the March  24, 2002  investigation renders  California 
       Speedway's  suggestion  that   it  did  not  have   notice 
       regarding the operation of its equipment without merit.

     14.  Additionally,  California  Speedway's  claim  that  the 
       forfeiture  should be  reduced because  the violation  was 
       minor is  not supported by the  facts.  We do not  believe 
       that a  non-licensed low power  FM operation that  exceeds 
       the permissible level for such operation by more than  254 
       times  is minor.   Further,  the absence  of  evidence  of 
       substantial  harm  to   any  third  party,  or  that   the 
       violation was egregious,  continuing or repeated, or  that 
       California Speedway derived  no substantial gain from  the 
       operation  are  not  relevant  factors  for  reducing  the 
       forfeiture.    These   factors   are   used   for   upward 
       adjustments to  the base forfeiture  amounts specified  in 
       Section 1.80 of  the Rules.31  The forfeiture at hand  was 
       issued  to California  Speedway  for the  base  amount  of 
       $10,000  as  specified  by  Section  1.80  for   operation 
       without an  instrument of authorization (i.e.,  unlicensed 
       operation).  None  of the upward  adjustment factors  were 
       used  in   the  determining  the   forfeiture  issued   to 
       California  Speedway.  Thus,  California Speedway's  claim 
       that  the absence  of these  factors  should result  in  a 
       reduction of the forfeiture is misplaced. 

     15.  Based on  the  facts of  this  case, we  conclude  that 
       neither  cancellation   nor  further   reduction  of   the 
       forfeiture is warranted.  Accordingly, we find  California 
       Speedway is liable in the amount of $8,000 for  unlicensed 
       operation of a  radio station in violation of Section  301 
       of the Act.

                        ORDERING CLAUSES

     16.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
       503(b)  of  the   Act,  and  Sections  0.111,  0.311   and 
       1.80(f)(4) of the  Rules,32 California Speedway IS  LIABLE 
       FOR A MONETARY FORFEITURE in the amount of eight  thousand 
       dollars  ($8,000)  for unlicensed  operation  of  a  radio 
       station in willful violation of Section 301 of the Act.

     17.  Payment of the forfeiture shall  be made in the  manner 
       provided in  Section 1.80 of the  Rules within 30 days  of 
       the release of this Order.  If the forfeiture is not  paid 
       within the period  specified, the case may be referred  to 
       the  Department  of Justice  for  collection  pursuant  to 
       Section  504(a) of  the Act.33   Payment  may be  made  by 
       mailing  a check  or similar  instrument, payable  to  the 
       order  of the  Federal Communications  Commission, to  the 
       Federal   Communications  Commission,   P.O.  Box   73482, 
       Chicago,   Illinois  60673-7482.    The   payment   should 
       reference NAL/Acct.  No.  200232900002 and FRN  0006-0339-
       97.  Requests for  full payment under an installment  plan 
       should be sent to:  Chief, Revenue and Receivables  Group, 
       445 12th Street, S.W., Washington, D.C. 20554.34  

     18.  IT IS FURTHER  ORDERED that,  a copy of  this Order  be 
       sent by  Certified Mail  - Return Receipt  Requested -  to 
       California  Speedway,  9300  Cherry  Avenue,  Fontana,  CA 
       92335  and  to its  counsel,  E.  Ashton  Johnston,  Piper 
       Budnick, LLP, 1200 19th Street, NW, Washington, DC 20036.


                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

1 47 U.S.C.  301.

2 California Speedway, NAL/Acct. No. 20023290002 (Enf. Bur., Los 
Angeles Office, May 30, 2002).

3 California Speedway's pleading is captioned as a ``Petition for 
Reconsideration.''  Since  a Notice  of Apparent  Liability is  a 
proposed action, there is no basis upon which to file a  petition 
for  reconsideration.   Accordingly,  we  will  treat  California 
Speedway's pleading as a  response to the NAL.   See 47 C.F.R.   
1.80(f)(3).

4 California  Speedway  holds a  license  to operate  on  several 
frequencies in the 461-466 MHz band under call sign WPJX911.

5 Letter  from Catherine  Deaton, Acting  District Director,  Los 
Angeles Office to Craig Hatch, California Speedway dated November 
14, 2001.

6 47 C.F.R.  15.209(a) and 15.239(b).

7 Response of California Speedway, 1, 2 (July 1, 2002 ) 
(``Response'').

8 Id., at 5-7.
 
9 Id., at 6.

10 Id.

11 Id., at 5.

12 Id., at 7-10.

13 Id.

14 Id.

15 Id., at 3.

16 Id.

17 Id.

18 Id.

19 47 U.S.C.  503(b).

20 47 C.F.R.  1.80.

21 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). 

22 47 U.S.C.  503(b)(2)(D). 

23 47 U.S.C.  301. 

24 47 C.F.R.  15.1(a).

25 47 C.F.R. Part 15. 

26 47 C.F.R.  15.1(b) (emphasis added). 

27 47 C.F.R.  15.239(b).

28 The term ``willful,''  as used in Section  503(b) of the  Act, 
does  not  require  a  finding   that  the  rule  violation   was 
intentional or that the violator was aware that it was committing 
a rule violation.  Rather,  the term ``willful'' simply  requires 
that the  violator knew  it was  taking the  action in  question, 
irrespective of  any intent  to violate  the Commission's  rules.  
Section 312(f)(1)  of  the  Act, 47  U.S.C.    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).  
  
29 See Liability of Donald W. Bishop Overland Park, Kansas, 8 FCC 
Rcd 2847 (1993).
30 Indeed, California Speedway's claim that it cannot verify the 
violation also suggests that California Speedway made no effort 
to monitor its operations even after being placed on notice by 
the Los Angeles Office of the possible unlicensed operation.  By 
way of comparison, in Networx Corporation, 17 FCC Rcd 10,572 (EB 
2002), cited by California Speedway as support for its argument 
that the forfeiture should be reduced or cancelled, the company, 
which had just installed the station, had taken measurements and 
made adjustments in an effort to assure compliance with the rule 
a few days prior to the agent's inspection and discovery of the 
violation.   

31 See 47 C.F.R.  1.80(b)(4) Note to Paragraph (b)(4).

32 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

33 47 U.S.C.  504(a).

34 See 47 C.F.R.  1.1914.