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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Thomas Costa Iowa City, IA ) ) ) ) ) ) File No.:
EB-FIELDSCR-12-00004683 NAL/Acct. No.: 201332560001 FRN: 0022089429
Adopted: April 4, 2013 Released: April 4, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of one thousand two hundred dollars ($1,200) to Thomas Costa for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act),^ by operating radio transmitting
equipment on the frequency 87.9 MHz in Iowa City, Iowa, without
Commission authorization. As discussed below, we deny Mr. Costa's
request for cancellation of the forfeiture, but grant, in part, his
request for reduction based on his inability to pay claim.
2. On October 19, 2012, the Kansas City Office of the Enforcement
Bureau's South Central Region issued a Notice of Apparent Liability
for Forfeiture (NAL), which found Mr. Costa in violation of Section
301 of the Act and, thereby, proposed a $10,000 monetary forfeiture.^
As reflected in the NAL, in response to a complaint, the Bureau's
agents determined that an unlicensed radio station operated on the
frequency 87.9 MHz from a residence in Iowa City, Iowa, on September
17 and 18, 2012.^ The agents, accompanied by the property owner,
located the station's antenna and transmitter in a room in the
basement workroom that Mr. Costa was renting.^ Mr. Costa later
admitted to the agents that he installed the radio station equipment,
but denied operating the station. Instead, Mr. Costa claimed that the
equipment was owned by several individuals (who he refused to
identify) who gave him rent money each month for use of the basement
room which he, in turn, gave to the property owner to pay the rent.^
Mr. Costa asserted that the alleged operators of the station did not
provide him with their names or contact information in order to
protect him and them from the Commission.^ Mr. Costa also stated that
he was told by the unnamed operators that he could expect the
Commission to inspect the station at some point and order him to cease
operations.^ In the NAL, the Bureau found that, despite Mr. Costa's
statements to the contrary, the overall record evidence supported
finding that he either consciously operated the unlicensed radio
station and/or otherwise was involved in the general conduct or
management of the station for purposes of finding him in violation of
Section 301 of the Act.^
3. On December 5, 2012, Mr. Costa submitted a response to the NAL,
requesting cancellation or, in the alternative, a reduction of the
forfeiture.^ In his response, Mr. Costa continues to deny operating
the station, and also denies stating to the agents that he installed
the radio equipment.^ Mr. Costa now claims that he merely "prepared
the room for [his unnamed "acquaintances"] by installing lighting and
an electrical outlet" and subleased the room to these unnamed
"acquaintances."^ In addition, Mr. Costa argues that the forfeiture
should be canceled on procedural grounds because: (1) the agents were
not entitled to enter his room because they lacked a search warrant
and, therefore, any evidence obtained from that room should have been
rendered inadmissible; and (2) the Bureau was required to send him a
citation prior to issuing a notice of apparently liability for
forfeiture. Alternatively, if the forfeiture is not canceled, Mr.
Costa asks the Bureau to reduce the forfeiture to $1 because he "has a
very modest income as a maintenance man, as well as very substantial
US Federal income taxes and a large outstanding student loan."^ We
address below each of these issues in turn.
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.
Costa's 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.^ As discussed below, we
have fully considered Mr. Costa's response to the NAL in light of
these statutory factors and find that cancellation of the forfeiture
is not warranted; however, we find that some reduction of the
forfeiture is justified based solely on his inability to pay claim.
A. Mr. Costa Engaged in Unlicensed Operations
5. We affirm the NAL's finding that Mr. Costa willfully and repeatedly
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.^ For the purposes of Section 301, the
word "operate" has been interpreted to mean both the technical
operation of the station, as well as "the general conduct or
management of a station as a whole, as distinct from the specific
technical work involved in the actual transmission of signals."^ In
other words, the use of the word "operate" in Section 301 captures not
just the "actual, mechanical manipulation of radio apparatus,"^ but
also operation of a radio station generally.^ To determine whether an
individual is involved in the general conduct or management of the
station, we can consider whether such individual exercises control
over the station, which the Commission has defined to include ". . .
any means of actual working control over the operation of the
[station] in whatever manner exercised."^
6. Despite Mr. Costa's assertion that he did not operate the unlicensed
radio station, the available record evidence demonstrates that, at the
very least, he was involved in the general conduct and/or management
of the station, which is sufficient to find him in violation of
Section 301. In this case, it is undisputed that on September 17 and
18, 2012, an unlicensed radio station operated on the frequency 87.9
MHz from a basement workroom in Iowa City, Iowa, that Mr. Costa was
renting. It is also undisputed that Mr. Costa was aware that the
Commission might direct him to cease the unlicensed operations, yet he
continued to operate the unlicensed radio station and/or permitted and
facilitated the ability of other unnamed individuals (based on his
unfounded assertion of their existence) to operate the station. In
fact, by his own admission, he installed lighting, installed an
electrical outlet, and subleased the room for these unnamed
individuals, thereby providing them with the ability to engage in the
unlicensed operations. Furthermore, if we accept as true Mr. Costa's
argument that he did not install the radio equipment that was used (an
argument which is inconsistent with the statement he originally gave
to the agents at the time of the inspection), he cannot deny the fact
that, even under that circumstance, he would have had to authorize and
provide access to the rented basement to his unnamed "acquaintances"
so that they could operate the unlicensed station.^ Therefore,
regardless of whether Mr. Costa physically operated the radio station
or not (and we continue to believe that he did operate the station),
the foregoing facts make clear that Mr. Costa nonetheless had
sufficient control over the station and its operations for purposes of
finding him in violation of Section 301.
A. The Bureau's Inspection and Resulting Enforcement Action Were
7. In his response, Mr. Costa also argues that the agents' search of the
basement room was an illegal trespass that necessitated a warrant and,
therefore, any evidence obtained should be inadmissible.^ We disagree.
First, it is well established that FCC agents are not required to
obtain a search warrant prior to conducting a radio station
inspection.^ Second, the inspection was authorized under Section
303(n) of the Act, which states that the Commission has the "authority
to inspect all radio installations associated with stations required
to be licensed by any Act, or which the Commission by rule has
authorized to operate without a license under section 307(e)(1)."^
Third, the agents' inspection, in any event, was not a criminal
investigation and the administrative forfeiture proceeding (as is the
case here) is not subject to the same rules of evidence applicable to
a criminal court, thereby making much of Mr. Costa's procedural claims
inapplicable.^ Finally, we find nothing in the record in this case to
support Mr. Costa's suggestion that the agents conducted themselves in
an improper manner. As the record reflects, the agents asked the
owner of the property to inspect the radio station located in the
premises. The owner took the agents to a room in the basement and
opened a locked door, after which the owner stated that he rented the
room to Mr. Costa. Thus, the agents had no reason to question whether
the property owner had the authority to open the locked door.^ Based
on all the foregoing, we find that the inspection conducted by the
agents was lawful and appropriate.
8. Mr. Costa is also mistaken that he was entitled to receive a citation
prior to issuance of the NAL. Although Section 503(b) of the Act
requires issuance of citations prior to forfeitures in certain
circumstances, it specifically excludes situations where individuals
are found "engaging in activities for which a license, permit,
certificate, or other form of authorization is required."^ By
transmitting on a frequency reserved for licensed broadcast services,
Mr. Costa was engaged in an activity for which a license is required.
Therefore, Mr. Costa was not entitled to receive a warning or citation
prior to issuance of the NAL in this proceeding.^
C. Inability to Pay Claim
9. Although Mr. Costa denies operating the unlicensed radio station, he
requests in the alternative that we reduce the proposed forfeiture to
$1, based on his inability to pay claim.^ With regard to an
individual's or entity's inability to pay claim, the Commission has
determined that, in general, gross income or revenues are the best
indicator of an ability to pay a forfeiture.^ Based on the financial
documents provided by Mr. Costa, we find sufficient basis to reduce
the forfeiture to $1,200.^ However, we caution Mr. Costa 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. Costa's financial circumstances. Accordingly, after
consideration of the entire record (including Mr. Costa's response to
the NAL), the Forfeiture Policy Statement, and the factors set forth
in Section 503(b)(2)(E) of the Act,^ we find that, although
cancellation of the monetary forfeiture is not warranted, a reduction
of the forfeiture amount from $10,000 to $1,200 is appropriate in this
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, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Thomas Costa
IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand two
hundred dollars ($1,200) for violations of Section 301 of the Act.^
11. 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 Forfeiture 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.^ Thomas Costa 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
* 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.
12. Any request for full payment 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.
13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Thomas Costa at his address of record and to his
counsel, Peter Franck, Law Offices of Peter Franck, 1939 Harrison
Street, Suite 910, Oakland, CA 94612.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 301.
^ Thomas Costa, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
13207 (Enf. Bur. 2012). A comprehensive recitation of the facts and
history of this case can be found in the NAL and is incorporated herein by
^ See id. at 13207, paras. 2-3.
^ Id. at 13207, para. 3.
^ See id. at 13209, paras. 6-7.
^ See Letter from Peter Franck, Counsel for Thomas Costa, to Ronald
Ramage, District Director, Kansas City Office, South Central Region,
Enforcement Bureau (Dec. 5, 2012) (on file in EB-FIELDSCR-12-00004683)
(First NAL Response). Mr. Costa asked for an extension to file his
response, which we granted. See e-mail from Ronald Ramage, District
Director, Kansas City Office, South Central Region, Enforcement Bureau to
Peter Franck, Counsel for Thomas Costa (Nov. 13, 2012, 11:00 A.M. C.S.T.)
(on file in EB-FIELDSCR-12-00004683).
^ First NAL Response at 2.
^ See Peter Franck, Counsel for Thomas Costa, to Ronald Ramage, District
Director, Kansas City Office, South Central Region, Enforcement Bureau
(Jan. 29, 2013) (on file in EB-FIELDSCR-12-00004683) (Second NAL
^ 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).
^ 47 U.S.C. S 301. See NAL, supra note 2.
^ 47 U.S.C. S 301.
^ See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in Sections 301,
307, and 318 of the Act, and concluding that the word "operate" as used in
Section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
^ Id. See also 47 U.S.C S 307(c)(1).
^ See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, Report and Order, 11 FCC Rcd 9712, 9747 (1995), recons. denied,
DIRECTV, Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).
^ Mr. Costa asserts that because the property owner turned off the
unlicensed station's transmitter during the station inspection, he could
be considered an operator of the station. See First NAL Response at 6.
While the property owner turned off the transmitter during our inspection,
we have insufficient evidence (and Mr. Costa provides none) to find that
the property owner operated, or was complicit in operating, the unlicensed
radio station. In addition, we note that, during the inspection, Mr. Costa
never stated that the property owner was in any way involved with the
operation of the unlicensed station.
^ See id. at 4.
^ See, e.g., Joaquim Barbosa, Forfeiture Order, 27 FCC Rcd 15334 (Enf.
Bur. 2012) (search warrant not required to conduct Commission inspection
of a radio station); Norfolk Southern Railway Company, Memorandum Opinion
and Order, 11 FCC Rcd 519 (CIB 1996) ("The right to inspect a station is
one of the cornerstones of the FCC's ability to ensure compliance with the
Communications Act and the FCC regulations."); Randall R. Gaines,
Revocation Order, 72 FCC 2d 871, 878, para. 13 (Rev. Board 1979) (search
warrant is not required for an inspection of a CB radio station).
^ 47 U.S.C. S 303(n) (emphasis added).
^ See Stephen Paul Dunifer, Memorandum Opinion and Order, 11 FCC Rcd 718,
729 (1995) (forfeiture proceeding is not a criminal proceeding) (Dunifer
MOO); Comcast Cable Communications, LLC, Memorandum Opinion and Order, 26
FCC Rcd 3726 (MB 2011) (rules of evidence governing civil proceedings only
apply to formal hearings before the Commission). See also 47 C.F.R. S
^ See Illinois v. Rodriguez, 497 U.S. 177 (1990) (finding that officer's
determination of consent to enter must be judged against objective
standard; and that if facts available to officer at the moment warrant a
person of reasonable caution to believe that consenting party had
authority over premises, warrantless entry without further inquiry is
lawful). Moreover, the rented room in question was not an apartment or
residence, but rather a workroom located in the furnace room of the
basement that also contained various things for general maintenance of the
house (e.g., paint, tools, and a work bench), which led the agents to
reasonably believe that the property owner had regular access to the
basement workroom. See U.S. v. Davis, 967 F.2d 84 (2^nd Cir. 1992)
(holding that third party consent to search validates warrantless search
if third party had access to the area searched and had either common
authority over the area, a substantial interest in the area, or permission
to gain access). Mr. Costa also provided a sworn statement from the
property owner that he did not view the basement workroom as "his
^ 47 U.S.C. S 503(b).
^ Dunifer MOO, 11 FCC Rcd at 728.
^ See Second NAL Response, supra note 12.
^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 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 32. If Mr.
Costa finds it financially infeasible to make full payment of this amount
within 30 days, he can request an installment plan, as described in
paragraph 12, infra, of this Forfeiture Order.
^ 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., Western
Region 2011) (holding that violator's repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay),
aff'd, Memorandum Opinion and Order, DA 13-199 (Enf. Bur. Feb. 15, 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. S 503(b)(2)(E). See 47 C.F.R. S 1.80(b)(5).
^ 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.
(Continued from previous page)
Federal Communications Commission DA 13-599
Federal Communications Commission DA 13-599