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 Glen Rubash Licensee of Amateur Radio Station KC0GPV
Manhattan, Kansas ) ) ) ) ) ) File Number: EB-FIELDSCR-12-00004676
NAL/Acct. No.: 201332560002 FRN: 0002373934
Adopted: November 21, 2013 Released: November 21, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to Glen Rubash for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act).^ The noted violations involved Mr.
Rubash's operation of an unlicensed radio transmitter on the frequency
88.3 MHz in Manhattan, Kansas.
2. On December 5, 2012, the Enforcement Bureau's Kansas City Office
(Kansas City Office) issued a Notice of Apparent Liability for
Forfeiture (NAL) ^ to Mr. Rubash for operating an unlicensed radio
transmitter in Manhattan, Kansas.^ As reflected in the NAL, on
September 26 and 27, 2012, agents from the Kansas City Office
determined that an unlicensed radio station was operating on the
frequency 88.3 MHz from a detached garage in Manhattan, Kansas.^ The
agents determined that Mr. Rubash secured space to the garage
specifically to house and operate the unlicensed radio station.^ On
September 27, 2012, Mr. Rubash admitted over the telephone that he
installed and owned the station's radio transmitting equipment and
demonstrated control over the station by stating that he would refuse
to surrender the equipment to the agents from the Kansas City Office
if required to do so.^
3. In response to the NAL, Mr. Rubash requests cancellation or reduction
of the proposed forfeiture.^ While he admits making the admissions via
telephone on September 27, 2012, he asserts that his statements were
based on incorrect information. He states he owned and installed a low
power FM radio transmitter, which operated within Part 15 unlicensed
limits^ and was only able to reach 300 feet beyond the garage housing
the station, to teach a small group of college and high school
students how to operate a community radio station.^ He states he
attached his transmitter to a home-built antenna supplied by one of
the students.^ He claims no knowledge of the radio transmitter that
was in place when the agents inspected the station on September 27,
2012, because he was absent from the station from late July until
September 29, 2012, due to illness.^ He asserts that someone must have
replaced the transmitter while he was recuperating from his illness.^
Accordingly, he asserts he should not be held responsible for unlawful
actions which occurred during his absence.^ Finally, in the
alternative, Mr. Rubash asserts that he is unable to pay the
forfeiture and requests a reduction.^
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Commission's
rules (Rules),^ and the Forfeiture Policy Statement.^ In examining Mr.
Rubash's NAL Response, Section 503(b)(2)(E) 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 other such matters as justice may require.^
5. We affirm the NAL's finding that Mr. Rubash violated Section 301 of
the Act.^ 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.^ It is undisputed that Mr. Rubash secured the
garage space for use by the radio station, and owned and operated a
radio transmitter on the frequency 88.3 MHz without a license. Mr.
Rubash contends, however, that his transmitter was not the transmitter
found in use by agents on September 27, 2012. Assuming he owned and
operated the low power FM transmitter as alleged,^ we would still
conclude he violated Section 301 of the Act. Based on the pictures
provided by Mr. Rubash and information gathered by agents from the
Kansas City Office, it appears his low power FM transmitter was not
FCC certified. Moreover, the home-built antenna in use at the station
was not authorized to be used with his transmitter. All intentional
radiators operating pursuant to Part 15 of the Rules must be certified
for use as a Part 15 device.^ Intentional radiators may only be
operated with the antenna with which they are authorized.^ Operating a
Part 15 device in a manner that is inconsistent with the Part 15 Rules
requires a license pursuant to Section 301 of the Act.^ Accordingly,
operation of the non-certified low power FM transmitter with an
unauthorized antenna described by Mr. Rubash was inconsistent with
Part 15 and required a license under Section 301 of the Act. A review
of the Commission's records confirms that no license or authorization
was issued to anyone to operate a radio station on 88.3 MHz from this
location. Moreover, the fact that Mr. Rubash may have been absent from
the station for a period of time does not mean that he did not operate
or exercise control over the station, as multiple individuals may
operate the same station.^ We have previously held that, because
Section 301 of the Act provides that "no person shall use or operate"^
radio transmission equipment, liability for unlicensed operation may
be assigned to any individual taking part in the operation of the
unlicensed station, regardless of who else may be responsible for the
operation.^ Therefore, based on the evidence before us, we conclude
that Mr. Rubash willfully and repeatedly violated Section 301 of the
Act by operating radio transmission equipment without the required
6. In the NAL Response, Mr. Rubash also states that he is unable to pay
the $15,000 forfeiture. With regard to an individual or entity's
inability to pay claim, the Commission has determined that gross
revenues are generally the best indicator of an ability to pay a
forfeiture.^ Based on the financial documents provided by Mr. Rubash,
we find sufficient basis to reduce the forfeiture to $4,000.^ However,
we caution Mr. Rubash that a party's inability to pay is only one
factor in our forfeiture calculation analysis, and is not
dispositive.^ We have previously rejected inability to pay claims in
cases of repeated or otherwise egregious violations.^ Therefore,
future violations of this kind may result in significantly higher
forfeitures that may not be reduced due to Mr. Rubash's financial
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Glen Rubash IS
LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
dollars ($4,000) for violations of Section 301 of the Act.^
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Order.^ If the forfeiture is not paid within the
period specified, the case may be referred to the U.S. Department of
Justice for enforcement of the forfeiture pursuant to Section 504(a)
of the Act.^ Glen Rubash shall send electronic notification of
payment to SCR-Response@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account Number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
9. Any request for full payment over time under an installment plan
should be sent to: Chief Financial Officer--Financial Operations,
Federal Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Glen Rubash
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 301.
^ Glen Rubash, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
15044 (Enf. Bur. 2012) (NAL). A comprehensive recitation of the facts and
history of this case can be found in the NAL and is incorporated herein by
^ Id. at 15044, paras. 2-3.
^ Id. at 15046, para.6.
^ Id. at 15044, para. 3.
^ Letter from Glen Rubash to Kansas City Office, South Central Region,
Enforcement Bureau at 1-2 (received Dec. 20, 2012) (NAL Response).
^ See, e.g., 47 C.F.R. S 15.209.
^ Mr. Rubash provided photographs of his low power FM radio transmitter.
See NAL Response at 4-5.
^ Mr. Rubash states that when he went to the station on September 29,
2012, several pieces of equipment had been removed from the station and
there was no transmitter present other than his disconnected low power
transmitter. Id at 2-3. Mr. Rubash, however, provided no corroborating
documentation for his statement, such as a police report detailing the
^ Id. at 2.
^ Mr. Rubash also states that he was under the influence of pain
medication during his telephone conversation on September 27, 2012. See
NAL Response at 2. As discussed in paragraph 5 infra, Mr. Rubash's written
statements in the NAL Response, made while he was not under the influence
of medication, also demonstrate that he violated Section 301. Therefore,
although Mr. Rubash appeared to sound lucid to agents on September 27,
2012, his written statements in the NAL Response are sufficient to affirm
the NAL's finding that Mr. Rubash violated Section 301 of the Act.
^ Id. at 3.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL supra note 2.
^ 47 U.S.C. S 301.
^ We remain skeptical of Mr. Rubash's story, as he made no mention of
students of any kind during the interview on September 27, 2012.
^ See 47 C.F.R. S 15.201(b).
^ See 47 C.F.R. S 15.204(c).
^ See 47 C.F.R. S 15.1(b).
^ See Durrant Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC
Rcd 6982 (Enf. Bur. 2011) (finding the fact that someone else may have
been involved in the operation of unlicensed station does not lessen
^ 47 U.S.C. S 301.
^ See, e.g., Durrant Clarke, 26 FCC Rcd at 6984, para. 7; Loyd Morris,
Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13736, 137638-39,
para. 8 (Enf. Bur. 2010); Robert Brown, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13740, 13741-42, para. 8 (Enf. Bur. 2010); Jean L.
Senatus, Forfeiture Order, 20 FCC Rcd 14418, 14420, para. 11 (Enf. Bur.
^ See Hoosier Broadcasting Corp., Memorandum Opinion and Order, 15 FCC
Rcd 8640 (2000) (forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross revenues); Local Long
Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture
not deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 27.
^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011)
(holding that violator's repeated acts of malicious and intentional
interference outweighed evidence concerning his ability to pay), aff'd,
Memorandum Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson
Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
2009) (holding that permittee's continued operation at variance with its
construction permit constituted an intentional and continuous violation,
which outweighed permittee's evidence concerning its ability to pay the
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-2235
Federal Communications Commission DA 13-2235