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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
)
) File Number No. 99SF646
Joshie Yasin Nakamura, Sr.
) NAL/Acct. No. 200132960002
a/k/a Marvin Eugene Barnes
)
800 Weeks St.
)
East Palo Alto, CA 94301
)
I.1. NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 19,
2001
By the Enforcement Bureau, San Francisco Field Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Joshie Yasin Nakamura, Sr. a/k/a Marvin
Eugene Barnes has apparently violated Section 301 of the
Communications Act of 1934 (``Act''), as amended1, by operating
an amateur radio station without a license issued by the Federal
Communications Commission. We conclude that Joshie Yasin
Nakamura, Sr. a/k/a Marvin Eugene Barnes is apparently liable for
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. The Commission's San Francisco Field Office received
several complaints between January 26 and March 2, 2000 from
amateur radio licensees and the Amateur Radio Relay League (ARRL)
Official Observer (OO). They asserted that a radio station was
operating on several amateur frequencies, including 445.175 MHz,
without proper authorization from the Commission from a residence
in East Palo Alto, CA. In addition they asserted that the
operator was causing interference by jamming and playing music.
3. On March 20, 2000, agents from the Commission's San
Francisco Field Office observed unidentified radio transmissions
on 445.175 MHz. The agents determined that the source of the
transmissions was located at 800 Weeks Street, East Palo Alto,
CA. The agents conducted an inspection and found that Mr. Joshie
Yasin Nakamura, Sr. a/k/a Marvin Eugene Barnes was operating the
station without authorization from the Commission. Mr. Nakamura
was verbally notified of these violations and issued a Notice of
Unlicensed Radio Operation (NOUO) at that time.
4. The Commission's San Francisco Field Office continued
to receive complaints between July 20 and September 8, 2000 from
amateur radio licensees and the OO. They asserted that the same
radio station was still operating on several amateur frequencies,
including 144.63 MHz, from a residence in East Palo Alto, CA and
was continuing to cause interference to amateur communications by
jamming and playing music.
5. On September 10, 2000, agents from the Commission's San
Francisco Field Office observed radio transmissions on 144.63
MHz. The agents determined that the source of the transmissions
was located at 800 Weeks Street, East Palo Alto, CA. The agents
conducted an inspection and found that Mr. Joshie Yasin Nakamura,
Sr. a/k/a Marvin Eugene Barnes was operating the station without
authorization from the Commission. Mr. Nakamura was verbally
notified of these violations and issued a NOUO at that time.
III. DISCUSSION
6. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license.2
7. Based on the evidence before us, we find that on
September 10, 2000, Joshie Yasin Nakamura, Sr. a/k/a Marvin
Eugene Barnes operated radio transmission apparatus without a
Commission authorization in repeated3 and willful4 violation of
Section 301 of the Act.5
8. Pursuant to the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement''), the base forfeiture amount is $10,000 for
unlicensed operation.6 In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the violation(s),
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.7 Applying the Forfeiture Policy Statement
and statutory factors to the instant case, a $10,000 forfeiture
is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended8, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules9, Joshie
Yasin Nakamura, Sr. a/k/a Marvin Eugene Barnes is hereby NOTIFIED
of his APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violating Section 301of the Act.10
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules11, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Joshie Yasin Nakamura, Sr.
a/k/a Marvin Eugene Barnes SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200132960002.
12. The response if any must be mailed to: Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD.
The response MUST INCLUDE THE NAL/Acct. No. 200132960002
referenced above.
13. 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.
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.12
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Joshie Yasin Nakamura, Sr. a/k/a Marvin Eugene
Barnes at 800 Weeks Street, East Palo Alto, CA 94301.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. VanStavern
District Director
_________________________
1 47 U.S.C. § 301.
2 47 U.S.C. § 301
3 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`repeated', when used with reference to the commission or
omission of any act, means the commission or omission of such act
more than once or, if such commission or omission is continuous,
for more than one day.''
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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 ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 47 U.S.C. § 301.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 15 FCC Rcd at 17100-01 (discussion of upward and
downward adjustment factors).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 U.S.C. § 301.
11 47 C.F.R. § 1.80.
12 See 47 C.F.R. § 1.1914.