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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-01-PA-238
)
Networx Corporation ) NAL/Acct. No.
200232400001
1 Fishers Road )
Pittsford, New York 14534 ) FRN # 0006-0222-97
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
10, 2002
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Networx Corporation (``Networx'') has
apparently violated Section 301 of the Communications Act of
1934, as amended,1 (``the Act'') by operating an unlicensed FM
broadcast station on the frequency 94.5 MHz at the Cumberland
Crossings Retirement Community in Carlisle, Pennsylvania. We
conclude that Networx is apparently liable for forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On or about October 19, 2000, the Enforcement Bureau's
Philadelphia Office received information from the engineer of a
local radio station that an unlicensed FM broadcast station was
allegedly operating in the Newtown Square, Pennsylvania area on
the frequency 105.7 MHz.
3. On that same day, FCC agent David Dombrowski of the
Philadelphia Office used direction finding techniques to locate
the source of the transmissions on the frequency 105.7 MHz to the
Dunwoody Village, 3500 West Chester Pike, Newtown Square,
Pennsylvania 19073. The FCC agent observed that the
transmissions from the station could be detected with a standard
car radio approximately 0.5 mile from the Dunwoody Village.
Nancy Morrison, the Recreation Director, permitted agent
Dombrowski to inspect the FM broadcast station. Nancy Morrison
explained that the Dunwoody Village subscribes to an FM broadcast
service on the frequency 105.7 MHz called ``Companion Radio.''
Networx Corporation installed and operates the FM broadcast
station equipment at the Dunwoody Village to provide the service.
4. Radio stations in the FM broadcast band, i.e.,
broadcast stations that transmit on a frequency between 88 and
108 MHz, must be licensed by the FCC (47 U.S.C. § 301). The only
exception to this licensing requirement in the FM broadcast band
is for certain non-licensed low-power radio transmitters
operating at a power level that complies with 47 C.F.R.
§ 15.239.2 This section limits such transmitters to the field
strength of 250 mV/m at a distance of three meters from the
transmitting antenna. On October 23, 2000, Agent Dombrowski
returned to Dunwoody Village and used a calibrated Potomac FIM-71
Field Strength Meter to make a measurement of the station's
signal at a distance of 100 feet from the antenna. The FCC agent
measured a field strength of 1,785 mV/m on the frequency 105.7
MHz. The FCC agent used extrapolation to calculate the signal
strength at three meters from the station's antenna. The agent
determined that the station's signal exceeded the permissible
level for a non-licensed radio transmitter by 73 times.
Accordingly, a license is required for the operation of the
station. Based on the Commission's records, no license has been
issued for the operation of an FM broadcast station at this
location. Thus, the station was operating in violation of
Section 301 of the Act.
5. On October 30, 2000, the Philadelphia Office sent
Networx a letter warning that operation of the unlicensed FM
broadcast station on the frequency 105.7 MHz at the Dunwoody
Village violated Section 301 of the Act; outlined the potential
penalties for operating the unlicensed station in violation of
Section 301 of the Act, including seizure of the equipment, fines
and imprisonment; and directed Networx to terminate operation of
the unlicensed station immediately. The Philadelphia Office
requested Networx Corporation to submit a written response within
10 days of receipt of the letter.
6. By letter dated November 9, 2000, Ken Unger, the
President of Networx Corporation, submitted a response to the
Philadelphia Office. Networx Corporation acknowledged that all
equipment utilized in its installations remains the property of
and is exclusively maintained by Networx Corporation. Networx
Corporation explained that it intended that its installations
comply with the field strength limits specified under Section
15.239 of the Rules. Networx Corporation did not dispute the
field strength measurements made by the Philadelphia Office and
stated that the Potomac Model FIM-71 is substantially more
accurate than the equipment Networx Corporation utilized to
determine compliance. Networx Corporation stated that it had
ceased operation of the FM broadcast station at the Dunwoody
Village on or about October 25, 2000. Networx Corporation
assured that it would purchase a Potomac Model FIM-71 Field
Strength Meter to conduct more accurate measurements and confirm
that its facilities are operated within the limits specified in
47 C.F.R. § 15.239.
7. On August 22, 2001, the Philadelphia Office received
information from the engineer of radio station WDAC that a
station was causing harmful interference to the reception of WDAC
on the frequency 94.5 MHz in Carlisle, Pennsylvania. The
offending station was identifying itself as ``Companion Radio.''
A listener of WDAC who lives on Strayer Drive in Carlisle,
Pennsylvania informed the Philadelphia Office that ``Companion
Radio'' completely wipes out the reception of WDAC at her
residence.
8. On August 23, 2001, FCC agents Trent Williams and David
Dombrowski used direction-finding techniques to locate the source
of the broadcasts on 94.5 MHz to the Cumberland Crossings
Retirement Community, 1 Longsdorf Way, Carlisle, Pennsylvania
17013. Kathleen Bolden, the Director of Personal Care, permitted
the FCC agents to inspect the station. Kathleen Bolden explained
that Cumberland Crossings Retirement Community subscribes to an
FM broadcast service on the frequency 94.5 MHz called ``Companion
Radio.'' Networx Corporation installed and operates the radio
equipment at the Cumberland Crossings Retirement Community to
provide the service.
9. Subsequently, agent Dombrowski and agent Williams used
a calibrated Potomac FIM-71 Field Strength Meter to make
measurements of the station's signal at a distance of 105 feet
from the antenna. The FCC agents measured a field strength of
8,841 mV/m on the frequency 94.5 MHz. The FCC agents used
extrapolation to calculate the signal strength at three meters
from the station's antenna. The agents determined that the
station's signal exceeded the permissible level for a non-
licensed radio transmitter by 377 times. Accordingly, a license
is required for the operation of the station. Based on the
Commission's records, no license has been issued for the
operation of an FM broadcast station at this location. Thus, the
station was operating in violation of 47 U.S.C. § 301.
III. DISCUSSION
10. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a license
in that behalf granted under the provisions of this Act.'' As
explained above, Networx Corporation operated an unlicensed FM
broadcast station at the Cumberland Crossings Retirement
Community after the Philadelphia Office had warned Networx
Corporation in writing that the operation of its FM broadcast
station at the Dunwoody Village was in violation of Section 301
of the Act.
11. Based on the evidence before us, we find that Networx
Corporation has willfully3 violated Section 301 of the Act, as
amended, by operating an unlicensed station at the Cumberland
Crossings Retirement Community in Carlisle, Pennsylvania on
August 23, 2001. The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy Statement'')4,
sets the base forfeiture amount at ten thousand dollars ($10,000)
for the operation of an unlicensed station. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act,5
which include 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. Applying the Policy
Statement and the statutory factors to the instant case and
applying the inflation adjustments, we believe that a ten
thousand dollar ($10,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules,6 Networx Corporation is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for operating unlicensed stations in violation of
Section 301 of the Act.
13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Networx Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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. 200232400001 and FRN # 0006-0222-97.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232400001.
16. 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.
17. 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. 20554.7
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Networx Corporation, 1 Fishers Road,
Pittsford, New York 14534.
FEDERAL COMMUNICATIONS
COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 15.239.
3 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).
4 47 C.F.R. § 1.80.
5
47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, and 1.80.
7 See 47 C.F.R. § 1.1914.