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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-SD-007
Global Radio, Inc. ) NAL/Acct. No. 200332940003
1275 First Avenue, No. 125 )
New York, New York 10021 ) FRN No. 000-869-2170
Adopted: September 20, 2004 Released: September 22,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand eight hundred
dollars ($10,800) to Global Radio, Inc. (``Global'') for willful
violations of Section 301 of the Communications Act of 1934, as
amended, (``Act''),1 and Section 74.103(c) of the Commission's
Rules (``Rules'').2 The noted violations involve Global's
operation of radio transmitting equipment on the unauthorized
frequencies 88.98 MHz, 104.1 MHz, and 106.9 MHz.
2. On March 8, 2003, the Commission's San Diego,
California District Office (``San Diego Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to Global
for a forfeiture in the amount of twelve thousand dollars
($12,000).3 Global filed a response to the NAL on May 8, 2003.
3. On January 10, 2003, Global filed an application with
the Media Bureau proposing to conduct tests of a special event
broadcasting station in conjunction with the National Football
League's Super Bowl XXXVII in San Diego, California. Global
requested use of six frequencies: 89.1 MHz, 92.9 MHz, 93.7 MHz,
96.9 MHz, 104.1 MHz, and 106.9 MHz.
4. On January 23, 2003, Global received an experimental
license from the Media Bureau authorizing operation on two
frequencies, 93.7 MHz and 96.9 MHz, under the call sign WN3XFL
for a limited time from Qualcomm Stadium, the site of Super Bowl
XXXVII. The Media Bureau, at that time, specifically denied
Global's request for permission to operate on four additional
channels, 89.1 MHz, 92.9 MHz, 104.1 MHz, and 106.9 MHz, due to
the possibility that such operation could cause interference
with existing broadcast stations in Mexico and the United
5. On January 26, 2003, an agent from the San Diego Office
observed that special event broadcast station WN3XFL was active
and operating, without license, on frequencies 88.98 MHz, 104.1
MHz, and 106.9 MHz, in addition to its operation pursuant to its
experimental license on frequencies 93.7 MHz and 96.9 MHz. The
agent used direction finding techniques, and determined that the
signals originated at Qualcomm Stadium. A subsequent search of
Commission records revealed no authority issued by the Media
Bureau to Global approving operation on any additional FM
broadcast radio frequencies.
6. On March 28, 2003, the San Diego Office issued the
subject NAL to Global for operation of radio transmitting
equipment on the unauthorized frequencies 88.98 MHz, 104.1 MHz,
and 106.9 MHz in apparent willful violation of the noted
sections of the Act and the Rules. On May 8, 2003, Global,
after obtaining an extension, responded to the NAL requesting
cancellation of the forfeiture, citing a history of overall
compliance and an inability to pay. In its response, Global
acknowledged its unauthorized operation on 89.1 MHz,5 104.1 MHz,
and 106.9 MHz.6 Global characterized its operation on the
additional channels as an experiment intended to ``explore the
role of Part 15'' and ``provide the FCC with reliable data'' as
further justification for cancellation.
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),7 Section 1.80 of the Rules,8
and The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Global'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 violator, the degree
of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require.9
8. Section 301 of the Act mandates that ``[n]o 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 this Act and with a
license in that behalf granted under the provisions of this
Act.''10 Part 74 of the Rules describes the circumstances under
which the Commission may grant an experimental broadcast
license.11 An experimental broadcast station is a particular
type of station licensed specifically for developmental
transmission of telecommunication services.12 The Commission
licenses experimental stations to encourage the development of
new broadcast technology.13 Section 74.103(c) of the Rules
states: ``[f]requencies best suited to the purpose of the
experimentation and on which there appears to be the least
likelihood of interference to established stations shall be
9. Using Section 74.103(c) as a guideline, the Media
Bureau selected frequencies 93.7 MHz and 96.9 MHz only, due to
the likelihood that operation on other requested frequencies
would cause harmful interference with existing, licensed
stations.15 Global does not dispute that it operated on the
unauthorized frequencies 88.98 MHz, 104.1 MHz, and 106.9 MHz, or
claim that it was authorized to operate on those additional
frequencies; instead, Global argues that it attempted operation
on those channels in an effort to experiment with the boundaries
of Part 15.16 Part 15 describes the regulations under which an
intentional or unintentional radiator may be operated without an
individual license.17 The operation of an intentional or
unintentional radiator not in accordance with Part 15 must be
licensed pursuant to the provisions of Section 301 the Act.18
Section 15.239(b) of the Rules requires that the field strength
of any emissions within the permitted frequencies 88 MHz through
108 MHz, shall not exceed 250 microvolts/meter at 3 meters.19
The unauthorized frequencies, 88.98 MHz, 104.1 MHz, and 106.9
MHz, at which Global operated on January 26, 2003, from Qualcomm
Stadium, resided wholly within the FM band. The San Diego
Office agent who observed the transmissions on frequencies 88.98
MHz, 104.1 MHz, and 106.9 MHz near Qualcomm Stadium, on January
26, 2003, from 12:30 p.m. PST until 2:00 p.m. PST, noted that,
based on the distance the signals were heard and the comparable
signal strengths of the unauthorized stations to those that were
authorized, the signals exceeded the specific limits of Section
15.239(b) of the Rules, and were, consequently, not Part 15
radio stations. Global's operation of radio transmitting
equipment on frequencies 88.98 MHz, 104.1 MHz, and 106.9 MHz,
therefore, required licensing pursuant to Section 301 of the
10. Global's claim, that its intent was to remain within
the confined boundaries set out in Part 15, does not persuade us
that the violation was not willful. Global's violation of the
parameters of Part 15 need not be intentional in order to hold
Global liable for a violation of Section 301 of the Act or
Section 74.103(c) of the Rules.20 All that is necessary is that
Global intended to commit the act that violated these
provisions.21 Here, Global intended to operate on the
unauthorized frequencies 88.98 MHz, 104.1 MHz, and 106.9 MHz;
accordingly, we conclude that Global willfully22 violated
Section 301 of the Act, and Section 74.103(c) of the Rules.
11. In its response, Global requested cancellation of the
forfeiture, due to an inability to pay, stating that, ``the
proposed forfeiture would be disproportionate to the company's
resources and would severely hinder the [company's] efforts to
work with the FCC.'' Global, however, submitted no evidence
that would support a cancellation or reduction of the forfeiture
based on an inability to pay.23
12. Global stated, in its response, that it used a field
intensity meter prior to its operation on the unauthorized
frequencies 88.98 MHz, 104.1 MHz, 106.9 MHz, and determined that
there were no ``listenable'' radio signals operating near
Qualcomm Stadium in San Diego, California, on those frequencies.
By this statement, Global appears to imply that its violations
of Section 301 of the Act and Section 74.103(c) of the Rules
were minor in nature. We disagree. Even given the probable
lack of interference actually caused to other stations and the
relatively short duration of Global's operation on these
frequencies, we find, given the nature of the violation, and due
to the fact that Global is a Commission licensee familiar with
Commission regulations, and because Global acted in direct
contradiction to a Media Bureau order prohibiting operation on
frequencies 88.98 MHz, 104.1 MHz, and 106.9 MHz, that these
violations were not minor, and no cancellation or reduction of
the forfeiture for minor violations is warranted.24
13. Global, in its response, requested we note that it has
a ``spotless'' record before the Commission. We have checked
Commission records concerning Global's performance as an
experimental broadcast licensee and concur that it has a history
of overall compliance.25 Accordingly, we reduce the forfeiture
amount to $10,800.
14. We have examined Global's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Global willfully violated Section 301 of the
Communications Act of 1934, as amended, and Section 74.103(c) of
the Rules. We find no basis for rescinding or canceling the
forfeiture due to an inability to pay, or for any other reason.
IV. ORDERING CLAUSES
15. 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,26 Global Radio, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand eight hundred
dollars ($10,800) for its willful violations of Section 301 of
the Act and Section 74.103(c) of the Rules.
16. Payment of the forfeiture shall be made in the
manner provided for 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.27 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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. Payment by overnight mail may be sent to Bank
One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
Illinois 60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account number
1165259. The payment must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption. 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. 20554.28
17. IT IS FURTHER ORDERED that a copy of this Order
shall be sent via First Class Mail and Certified Mail, Return
Receipt Requested, to Global Radio, Inc., 1275 First Avenue, No.
125, New York, New York, 10021.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
- Unhandled Picture -
1 47 U.S.C. § 301.
2 47 C.F.R. § 74.103(c).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332940003 (Enf. Bur., San Diego Office, released March 8,
4 Letter from Brian J. Butler, Supervisory Engineer, Audio
Division of Commission's Media Bureau, to Gregg Baldinger,
President, Global Radio, Inc., at 1, dated January 23, 2002.
5 The NAL does not allege that Global operated on 89.1 MHz,
rather, it alleges that Global operated on the unauthorized
frequency 88.98 MHz. Global made no reference to the unauthorized
operation on 88.98 MHz in its response to the NAL, but it
concedes that it operated without authorization on 89.1 MHz. For
the purposes of clarity in this Order, we will refer to the
frequency as 88.98 MHz.
6 Global also admitted unauthorized operation on 92.9 MHz.
However, since the NAL does not address operation on this
unauthorized frequency, we will not address it in this Order.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 301.
11 47 C.F.R. § 74 et. seq.
12 See 47 C.F.R. § 74.101.
13 See 47 C.F.R. § 74.102.
14 47 C.F.R. § 74.103(c).
15 Additionally the Media Bureau noted that its study indicated
that based on interference protection ratios in the US-Mexican
working agreement, Global's request would cause interference to
Mexican FM stations. See fn 4, supra.
16 47 C.F.R. § 15 et. seq.
17 See 47 C.F.R. § 15.1(a).
18 See 47 C.F.R. § 15.1(b).
19 47 C.F.R. §15.239(b).
20 See Rev. Yvon Louis, 18 FCC Rcd 16187, 16189 (Enf. Bur., 2003)
(holding an individual liable for a $10,000 forfeiture for
operating on unlicensed frequencies, even though he believed he
operated his communications equipment within the parameters of
Part 15 and, as a result, required no license).
21 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,'
... 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, 4388 (1991) (forfeiture to an AM radio station for
willful violation of sponsorship identification, even though the
AM radio station did not know its actions violated any rule or
law), recon. denied, 7 FCC Rcd 3454 (1992).
23 See NAL at ¶ 12 (stating that ``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.''); see also Commonwealth
License Subsidiary, LLC, 18 FCC Rcd 20483, 20486 (2003)
(rejecting a station's claim of inability to pay due to the radio
station's failure to provide proper documentation); PJB
Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(finding that gross receipts are a ``very useful yardstick'' in
analyzing a company's financial condition for forfeiture
24 See AGM Nevada LLC, 18 FCC Rcd 1476, 1478-1479 (Enf. Bur.
2003) (concluding that ``the absence of interference or any
showing of harm to the public interest does not entitle AGM to a
reduction of the proposed forfeiture''); see also Application of
Liberty Cable Co., Inc., 16 FCC Rcd 16105, 16112 (2001)
(concluding that ``unlicensed radio operation is a serious
violation of the Act''); KNFL, Inc., 15 FCC Rcd 10286, 10289
(Enf. Bur. 2000) (concluding that KNFL's operation of a radio
station without a license after receiving a warning regarding the
illegality of such operation was not a minor violation), recon.
denied, 15 FCC Rcd 25527 (Enf. Bur. 2000).
25 See Coffee County Broadcasting, Inc., 19 FCC Rcd 2942, 2943
(Enf. Bur. 2004) (``Coffee County states that it has never had
any major FCC violations, which we interpret to be a claim of
history of overall compliance'').
26 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
27 47 U.S.C. § 504(a).
28 See 47 C.F.R. § 1.1914.