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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Daniel K. Roberts a/k/a "Monkey Man" a/k/a "Monkey" San
Francisco, California ) ) ) ) ) ) ) File Number: EB-09-SF-0031 NAL/Acct.
No.: 200932960004 FRN: 0019070572
Memorandum opinion and order
Adopted: February 7, 2014 Released: February 7, 2014
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (MO&O), issued pursuant to
Section 405 of the Communications Act of 1934, as amended (Act),^ we
deny the petition for reconsideration (Petition)^ filed by Daniel K.
Roberts a/k/a "Monkey Man" a/k/a "Monkey" (Mr. Roberts) of the
Forfeiture Order issued by the Enforcement Bureau's Western Region
(Region) on October 21, 2011.^ The Forfeiture Order imposed a monetary
forfeiture in the amount of ten thousand dollars ($10,000) for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act)^ by engaging in unlicensed operation of
a radio broadcast station.^
2. This case concerns Mr. Roberts's operation of Pirate Cat Radio (PCR),
which operated a radio broadcast station on frequency 87.9 MHz in San
Francisco, California, without a license issued by the FCC. As
detailed in the Forfeiture Order, Mr. Roberts was the executive of the
Pirate Cat Cafe and Studio located at 2781 21^st Street, San
Francisco, California. In 2008, Mr. Roberts began operating PCR from a
radio studio located at the Pirate Cat Cafe and Studio. At the time
the Notice of Apparent Liability for Forfeiture (NAL) was issued in
this proceeding, PCR's website prominently featured Mr. Roberts; in
addition, PCR described itself as an "unlicensed low powered community
radio" located at the same address as the Pirate Cat Cafe and Studio.^
The Enforcement Bureau's San Francisco Office issued numerous warnings
and Notices of Unlicensed Operation (NOUOs) to Mr. Roberts and PCR
concerning unlicensed radio operations that detailed the potential
penalties for operating an unlicensed radio station and for further
violations of the Act and the Commission's rules (Rules).^
3. On April 28, 2009, and April 29, 2009, agents from the San Francisco
Office, using radio direction-finding methods, determined that the
transmission source of a radio signal on frequency 87.9 MHz was an
antenna on the roof of a residence at 841 Corbett Avenue, San
Francisco, California. The agents took field strength measurements of
the signals and determined that the signals being broadcast exceeded
the limits for operation under Part 15 of the Rules^ and therefore
required a license. A review of the Commission's records found no
evidence of an FCC authorization for operation on frequency 87.9 MHz
in San Francisco, California. Also on April 29, 2009, the agents
observed Mr. Roberts operating and controlling the unlicensed radio
station on frequency 87.9 MHz from the Pirate Cat Cafe and Studio. The
agents subsequently monitored PCR and again determined that the
transmission source of the unauthorized radio signal was 841 Corbett
Avenue, San Francisco, California. The agents recognized and
identified Mr. Roberts as the voice on the unlicensed transmissions
carried on PCR.^
4. On August 31, 2009, the Enforcement Bureau's San Francisco Office
issued the NAL in the amount of $10,000 to Mr. Roberts, finding that
Mr. Roberts apparently willfully and repeatedly violated Section 301
of the Act by operating an unlicensed broadcast station.^ After the
issuance of the NAL, PCR's broadcasts on frequency 87.9 MHz in San
Francisco ceased.^ On October 23, 2009, after receiving an extension
of time from the San Francisco Office, Mr. Roberts filed a response to
the NAL (NAL Response).^ In the NAL Response, Mr. Roberts
"acknowledge[d] his involvement in extra-legal broadcasting years
ago," but denied that "transmissions ha[d] ever emanated from the
location admittedly under his control, the Pirate Cat Radio cafe and
studio at 2781 21^st Street in San Francisco."^ Mr. Roberts also
denied "`operating' or `controlling' any `unlicensed radio station on
87.9 MHz' or any transmission of energy on any frequency."^ By
contrast, Mr. Roberts conceded that "on April 28 and 29, 2009, when
agents observed [him] at the Pirate Cat Radio address, [he] was
operating the board, mixers and espresso machine."^ Mr. Roberts
alleged that PCR's internet-streamed program service is downloaded and
broadcast by third parties, but acknowledged that PCR's website
described his facility as an "unlicensed low powered community
radio.'"^ However, Mr. Roberts stated that "[t]his statement does not
currently appear on the website, and is inaccurate because Pirate Cat
Radio, while certainly unlicensed, ha[d] never originated broadcast
transmissions or extra legal transmission of any kind."^
5. The Region determined that Mr. Roberts's arguments that Section 301
requires that the violator actually operate a transmitter at the
location of the studio were invalid, and stated that (for purposes of
Section 301) "the word `operate' has been interpreted to mean `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.'"^ The Region stated that, consistent with precedent, the
use of the word "operate" in Section 301 of the Act captures not just
the "`actual, mechanical manipulation of radio apparatus,' but also
operation of a radio station generally."^ The Region further noted
that the Commission can consider whether an individual exercises "any
means of actual working control over the operation of the [station] in
whatever manner exercised'" when determining whether such individual
is involved in the general conduct or management of an unlicensed
6. The Region observed that while Mr. Roberts stated that he had no
control over PCR's unlicensed transmissions, Mr. Roberts held himself
out publicly as PCR's manager and described PCR as a broadcast
station, not just a source of internet programming.^ The Region
determined that Mr. Roberts solicited funds on the PCR website,
stating that "[d]onations go towards monthly station cost of running
the FM transmitter and help Pirate Cat Radio buy new radio station
equipment."^ In addition, in August 2009, Mr. Roberts accepted a
certificate from the San Francisco Board of Supervisors which
recognized PCR for its "trailblazing efforts toward freeing the
airwaves from corporate control, providing the community with training
in radio broadcast skills, empowering voices ignored by traditional
media outlets, and contributing to the advancement of the city's
coffee culture."^ The Region also determined that Mr. Roberts admitted
operation of PCR as an unlicensed radio broadcast station in response
to the NAL on October 31, 2009, when he issued a press release stating
that "Pirate Cat Radio . . . has ceased its terrestrial broadcast on
87.9FM in response to the latest demands of the Federal Communications
Commission."^ The Region found that "[c]oncurrent with the issuance of
Roberts' press release, broadcasts of PCR on frequency 87.9 MHz in the
San Francisco area did cease."^
7. In his Petition, Mr. Roberts again argues that no facts connect him
with the transmissions from the transmitter located at 841 Corbett
Avenue; the "allegations" contained in the Forfeiture Order do not
meet the requirements of Section 301 of the Act; precedent does not
support the Region's violation determination; and the Forfeiture Order
"constitutes an unlawful infringement on protected speech."^ We
address these arguments below.
8. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters.^ A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.^ As discussed below, we find
that Mr. Roberts has not provided any basis to warrant reconsideration
of the Forfeiture Order. We therefore affirm the Region's findings.^
9. In his Petition, Mr. Roberts essentially repeats the arguments
considered (and rejected) by the Region in the Forfeiture Order. Mr.
Roberts primarily argues that the Region cannot support a Section 301
violation finding against him because it cannot show that he
physically operated a transmitter without a license.^ Specifically,
Mr. Roberts disagrees with the Region's application of Campbell v.
United States,^ which established that the term "operate" under
Section 301 refers to "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."^ Mr. Roberts maintains that this
distinction depends upon whether a subject was operating a station
without an operator's license as opposed to a station operation
without a license, and argues that the Region incorrectly applied a
vague "management" standard in support of its violation finding.^ We
disagree. The Campbell court determined that a Section 301 violation
encompasses the broader "management" definition of "operate" when it
refused to limit the term to cover only "the actual, mechanical
manipulation of radio apparatus."^ Instead, the court found that the
term "operate," as used in Section 301, encompasses "the general
conduct or management of a station as a whole."^ The court concluded
that Section 301's prohibition of unlicensed broadcast operations "is
intended to cover generally both radio stations and radio operators."^
As a result, the Region correctly concluded that Mr. Roberts's actions
involved the general conduct or management of PCR as a whole,
resulting in the operation of a radio broadcast station without an FCC
license in violation of Section 301 of the Act.
10. We find no merit to Mr. Roberts's argument that the Forfeiture Order
was an unlawful infringement on protected speech.^ As noted in his
Petition, Mr. Roberts concedes that "Congress acted within its powers
in creating a regime of licensing for broadcast . . . providing that
unlicensed transmissions must be banned from the airwaves."^ Mr.
Roberts's suggestion that the enforcement action taken against him
results from the content of the unlicensed broadcasts and his
promotional activity in support of PCR's operations is unfounded.^
Rather, it is Mr. Roberts's operation of an unlicensed broadcast radio
station that formed the basis of the Section 301 violation.
11. Based on the overall record in this case, we find that the Region
correctly determined that Mr. Roberts was engaged in the management
and operation of PCR in violation of Section 301 of the Act and that
such operation was supported by a preponderance of the evidence.^ This
included Mr. Roberts's fundraising for the PCR FM transmitter, his
long history of promoting PCR and himself, and the physical control of
the PCR broadcast transmission on frequency 87.9 MHz, which he
announced he was stopping after the issuance of the NAL.^ Therefore,
we find that the Petition fails to demonstrate a material error or
omission in the underlying Forfeiture Order or raise additional facts
not known or not existing until after Mr. Roberts's last opportunity
to present such matters. Accordingly, we affirm the Forfeiture Order
and find Mr. Roberts liable for a monetary forfeiture in the amount of
ten thousand dollars ($10,000) for willfully and repeatedly violating
Section 301 of the Act.
IV. ordering clauses
12. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended,^ and Section 1.106 of the
Rules,^ the Petition for Reconsideration filed by Daniel K. Roberts
a/k/a "Monkey Man" a/k/a "Monkey" IS DENIED and the Forfeiture Order
13. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Daniel K. Roberts
a/k/a "Monkey Man" a/k/a "Monkey" IS LIABLE FOR A MONETARY FORFEITURE
in the amount of ten thousand dollars ($10,000) for willfully and
repeatedly violating Section 301 of the Act.^
14. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules immediately and no later than thirty (30)
calendar days after the release date of this Memorandum Opinion and
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.^
Daniel K. Roberts a/k/a "Monkey Man" a/k/a "Monkey" shall send
electronic notification of payment to WR-Response@fcc.gov on the date
said payment is made.
15. 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.
16. Any request for making 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,
17. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both regular mail and by certified mail, return receipt
requested, to Daniel K. Roberts a/k/a "Monkey Man" a/k/a "Monkey" at
his address of record, and to his counsel, Michael Couzens, Esquire,
Michael Couzens Law Office, 6536 Telegraph Ave., Suite B201, Oakland,
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ See 47 U.S.C. S 405.
^ See Daniel K. Roberts, Petition for Reconsideration (filed Nov. 21,
2011) (on file in EB-09-SF-0031) (Petition).
^ Daniel K. Roberts, Forfeiture Order, 26 FCC Rcd 14484 (Enf. Bur. 2011)
(Forfeiture Order), aff'g Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200932960004 (Enf. Bur. Aug. 31, 2009) (NAL).
^ 47 U.S.C. S 301.
^ Forfeiture Order, 26 FCC Rcd at 14488, para. 13.
^ Subsequent to the issuance of the NAL, the PCR website underwent various
changes that eliminated much of the language that evidenced PCR and Mr.
Roberts's control of the PCR broadcasts on frequency 87.9 MHz.
^ See, e.g., Notice of Unlicensed Operation to Daniel K. Roberts (Mar. 7,
2006) (on file in EB-05-SF-0139); Notice of Unlicensed Operation to Jason
Seifert (Apr. 20, 2006) (on file in EB-06-SF-0031); Notice of Unlicensed
Operation to Josh Goodwin (June 27, 2006) (on file in EB-06-SF-0026);
Notice of Unlicensed Operation to Alexander Ness (Mar. 29, 2007) (on file
in EB-07-SF-0037); On-Scene Notice of Unlicensed Operation (Aug. 18, 2008)
(on file in EB-08-SF-0269).
^ Section 15.239 of the Rules provides that non-licensed broadcasting in
the 88-108 MHz frequency band is permitted only if the field strength of
the transmission does not exceed 250 mV/m at three meters. See 47 C.F.R. S
15.239. Fundamental emissions from intentional radiators are not permitted
in the 76-88 MHz frequency band. See 47 C.F.R. S 15.209(a). On April 28,
2009, the measurements indicated that the signal was more than 4,000 times
greater than the maximum permissible level for a non-licensed Part 15
transmitter in the 88-108 MHz frequency band and more than 10,000 times
greater than the maximum permissible level in the 76-88 MHz band. On April
29, 2009, the measurements indicated that the signal was more than 3,000
times greater than the maximum permissible level for a non-licensed Part
15 transmitter in the 88-108 MHz frequency band and more than 8,000 times
greater than the maximum permissible level in the 76-88 MHz frequency
^ Forfeiture Order, 26 FCC Rcd at 14485, para. 3.
^ See NAL, supra note 3.
^ Forfeiture Order, 26 FCC Rcd at 14485, para. 4.
^ See Response of Daniel K. Roberts (filed Oct. 23, 2009) (on file in
EB-09-SF-0031) (NAL Response).
^ Id. at 1.
^ Forfeiture Order, 26 FCC Rcd at 14486, para. 7.
^ Id. Mr. Roberts also argued that he was unable to pay the proposed
forfeiture amount. However, Mr. Roberts failed to produce any financial
information or documentation, and the Region consequently denied his
request to reduce the proposed forfeiture. See id. at 14488, para. 11.
^ Id. at 14486, para. 8 (quoting 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 as well as the general conduct or management of a
broadcast radio station)).
^ See id.; 47 U.S.C. S 307(c)(1).
^ Forfeiture Order, 26 FCC Rcd at 14486, para. 8 (quoting Revision of
Rules and Policies for the Direct Broadcast Satellite Service, Report and
Order, 11 FCC Rcd 9712, 9747, para. 91 (1995), aff'd sub nom. DIRECTV,
Inc. v FCC, 110 F.3d 816 (D.C. Cir 1997). See, e.g., Vicot Chery, Notice
of Apparent Liability for Forfeiture, 25 FCC Rcd 14596 (Enf. Bur. 2010).
^ See Forfeiture Order, 26 FCC Rcd at 14487, para. 9. See also Joel
Selvin, Pirates Ride the Airwaves from Mission Redoubt, S.F. Gate, Jan. 5,
2009, available at http://articles.sfgate.com/2009-01-05/entertainment/
17197051_1_pirate-radio-monkey-radio-station (last visited Nov. 8, 2010)
("Monkey has operated Pirate Cat Radio in various locations for 12 years
and opened the cafe in March with a novel business plan. He oversees a
staff of 52 disc jockeys who pay a $30 monthly fee to do their air shifts
. . . ."); Ashley Harrell, The Radio Pirate Goes Legit, S.F. Weekly, May
26, 2010, available at
visited Nov. 8, 2010) (discussing Mr. Roberts's history as a pirate radio
broadcaster) (Harrell Article); http://www.piratecatradio. com/about/php
(last visited July 28, 2008) ("Pirate Cat is an unlicensed low powered
community radio station, broadcasting on 87.9 megahertz.").
^ Forfeiture Order, 26 FCC Rcd at 14487, para. 9. Mr. Roberts also stated
on the PCR website "that Title 47 Section 73.3542 of the U.S. Code of
federal regulations currently allows Pirate Cat Radio 87.9fm to legally
broadcast with out [sic] a formal licence [sic] from the FCC." Id. We note
that the authority to operate pursuant to Section 73.3542 of the Rules
must be granted by the Commission and the applicant bears the burden of
showing the required "extraordinary circumstances" to support such a
grant. See A-O Broad. Corp., Memorandum Opinion and Order, 23 FCC Rcd
603, 614, para. 20 (2008). No evidence exists showing that Mr. Roberts or
PCR has ever received such a grant of authority from the Commission.
Additionally, the frequency used by Mr. Roberts and PCR at 87.9 MHz is not
allocated to the FM broadcast band. See 47 C.F.R. S 73.201.
^ Forfeiture Order, 26 FCC Rcd at 14487, para. 9 (quoting Harrell
Article). We note that the Commission created the low power FM (LPFM)
broadcast service to encourage nonprofit educational groups to actively
participate in local broadcasting and to foster a diverse range of
community voices. See 47 C.F.R. S 73.801 et seq. See also
(last visited Feb. 3, 2014).
^ Id. at 14487-88, para. 10. See Kevin Montgomery, Pirate Cat Radio Fined
$10k and Ceases FM Broadcast, Mission Mission, Nov. 2, 2009, available at
pirate-cat-radio-fined-10k-and-ceases-fm-broadcast/ (last visited Aug. 16,
2010). The press release also stated that "PCR can continue as an internet
only station and the cafe/studio on 21^stst [sic] will continue to
operate, . . . but it cannot safely broadcast over the terrestrial FM band
without possibly jeopardizing its volunteers and supporters." Id. The
press release concluded by stating that Mr. Roberts and others working at
the station "made a collective decision that Pirate Cat Radio must come
off the public airwaves, until some method is found to change the law or
get it authorized under existing law." Id.
^ Forfeiture Order, 26 FCC Rcd at 14488, para. 10. This fact undercuts
Mr. Roberts's earlier assertion that the transmissions detected by the San
Francisco Office agents were caused by third parties outside his control
involved in airing internet-streamed program service from PCR. See id. at
14486, para. 7.
^ Petition at 2-12. Mr. Roberts contends that the NAL did not comply with
the Commission's rules because it did not give him "an opportunity within
30 days to address the charges in a personal interview at the field office
as required by Section 1.80(d) of the Rules, 47 C.F.R. S 1.80(d)." Id. at
1 n.1. Mr. Roberts misunderstands the application of the interview
provisions of Section 1.80(d). An opportunity for an interview is not
required when the individual "is engaged in (and the violation relates to)
activities for which a license, permit, certificate, or other
authorization is required . . . ." 47 C.F.R. S 1.80(d)(3). As described
above, Mr. Roberts was required to have an authorization for his PCR
broadcast on frequency 87.9 MHz and therefore was not entitled to a
personal interview at the field office before the imposition of a
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257 (Enf. Bur. 2000) (citing WWIZ, Inc., 37 FCC 685,
686 (1964), aff'd sub. nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
Cir. 1965), cert. denied, 383 U.S. 967 (1966)).
^ EZ Sacramento, Inc., 15 FCC Rcd at 18257, para. 2.
^ Mr. Roberts argues that certain sworn statements made in his NAL
Response must be accepted as true, including his statements that he had no
ownership, access, and control over any facility at 841 Corbett Avenue,
that he did not install or operate a transmitter at 841 Corbett Avenue,
that he did not create a studio-transmitter link from the Pirate Cat Cafe
and Studio to another location, and that "no extra-legal transmitter had
ever been energized at the location of Pirate Cat Radio" because the
Region failed to rebut them. Petition at 1-2. We disagree. The Region
took into account these statements when it specifically determined that
Mr. Roberts "mistakenly argues that a violation of section 301 of the Act
requires that the violator be actually operating a transmitter at the
location of the studio and nothing less." Forfeiture Order, 26 FCC Rcd at
14486, para. 8.
^ Petition at 3-6.
^ 167 F.2d 451 (5th Cir. 1948).
^ Petition at 6; Forfeiture Order, 26 FCC Rcd at 14486, para. 8 (quoting
Campbell, 167 F.2d at 453). Mr. Roberts objects to the Region's assertion
that, in order to determine whether an individual is involved in the
general conduct or management of the station, the Commission can consider
whether such individual exercises "any means of actual working control
over the operation of the [station] in whatever manner exercised." See
Petition at 8-9. While Mr. Roberts may disagree with this longstanding
Commission precedent, he provides no evidence that he did not exercise
working control over the operation of PCR without a license.
^ Petition at 6-7. Mr. Roberts also cites to United States v. Molyneaux,
55 F.2d 912 (2d Cir 1932), a case decided under the Federal Radio Act,
which predates the existence of the Federal Communications Commission.
That case is inapposite to the instant case because Molyneaux concerned an
individual handling and manipulating radio apparatus, not an individual
promoting a radio station and controlling its management and operation.
Although mechanical manipulation of radio apparatus is not required under
the standard established in Campbell, we note that the record in this
proceeding demonstrates (and Mr. Roberts did not dispute) that Mr. Roberts
was observed operating the board, mixers, and other equipment at the
Pirate Cat Cafe and Studio and that agents from the San Francisco Office
recognized and identified Mr. Roberts as the voice on the unlicensed
transmissions. See supra paras. 3-4.
^ Campbell, 167 F.2d at 453.
^ Id. Mr. Roberts argues that previous enforcement actions against
unlicensed operators involved individuals with access to the coaxial cable
linking the operator's residence to the transmitter or the actual room
containing the transmitter. See Petition at 7 n. 5 (citing Durrant Clark,
Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6982 (Enf. Bur.
2011); Christopher M. Myers, Memorandum Opinion and Order 26 FCC Rcd 10302
(Enf. Bur. 2011); Nounoune Lubin, Forfeiture Order, 26 FCC Rcd 7758 (Enf.
Bur. 2011); Audre Alleyne and Jessie White, Forfeiture Order, 26 FCC Rcd
10372 (Enf. Bur. 2011) (Alleyne and White)). As indicated above, it is Mr.
Roberts's management of PCR, not access to PCR's radio equipment, which
violated Section 301. However, we note that in certain enforcement actions
cited to by Mr. Roberts the evidence supporting a finding of unlicensed
operation included unsworn statements by individuals acknowledging that
they owned and operated the station as well as the ability of the
individuals to turn off the unlicensed station. See Alleyne and White, 26
FCC Rcd at 10376, para. 9; Eleuterio Lebron, Notice of Apparent Liability
for Forfeiture, 26 FCC Rcd 13070, 13070, para. 2 (Enf. Bur. 2011). Mr.
Roberts demonstrated similar control over PCR when he announced and
effected the cessation of PCR's transmissions following issuance of the
^ Petition at 9-11.
^ Id. at 9.
^ Indeed, Mr. Roberts previously stated publicly his belief that the
enforcement action taken against him was not based on the content of PCR's
broadcasts. See Titania Kumeh, Music Monday: Pirate Cat Radio vs. the FCC,
Mother Jones Magazine, Jan. 18, 2010, available at
www.motherjones.com-riff-2009-12-fight-radio-right (last visited April 16,
2013) (reporting that Mr. Roberts stated that "the reason the FCC is
possibly giving us a fine and telling us to get off the air, I think, is
not because of content or because of interfering with other stations. The
FCC just licensed outside of the filing period for TV channel 6 in
Fremont, which utilizes 87.9 FM for its audio carrier, so I wouldn't be
surprised if somebody with a big pocketbook said, `Hey! We want this
license and we're going to pay you money to give us a license outside of
your filing period.'") (Kumeh Article).
^ See AT&T, Inc., Forfeiture Order, 27 FCC Rcd 10803 (Enf. Bur. 2012)
(finding the preponderance of the evidence, including the cessation of
interference when subject exercised control of device by turning it off,
supports finding a Section 301 violation, even when the subject denies
that it was the source of the interference).
^ Despite Mr. Roberts's carefully parsed arguments about the definition of
"operate" under Section 301, we note that he continued to publicize his
operation of PCR for months after the issuance of the NAL. See, e.g.,
Kumeh Article. In that article, Mr. Roberts was asked, "Why fight for the
right to be on the radio when it's practically obsolete?" Mr. Roberts
responded, "[a] lot of people don't have the money to spend to be a part
of the digital world. They don't own a computer. They don't have an
Internet connection; if they do have an Internet connection and computer,
they can listen to Pirate Cat Radio online, but they still have to deal
with buffering and not having the right software to listen to the stream.
Whereas when a radio station broadcasts through analog air, you can go and
pick up a radio at Radio Shack literally for $5 and turn it on, tune to
87.9 FM, and you'll get Pirate Cat Radio." Kumeh Article.
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
^ 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 14-167
Federal Communications Commission DA 14-167