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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Raimundo P. Silva ) File Number: EB-04-SF-150
)
Licensee of Amateur Station ) NAL/Acct. No. 200532960001
KD6SXG ) FRN 0009808163
Brentwood, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released:
October 26,
2004
By the District Director, San Francisco Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that Raimundo P. Silva
(``Silva''), licensee of Amateur Station KD6SXG, apparently
willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended ("Act"),1 by
operating on the frequency of 297.530 MHz without Commission
authorization. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended,2 that Silva is
apparently liable for a forfeiture in the amount of twenty
thousand dollars ($20,000).
II. BACKGROUND
2. On April 12, 2004, the Commission's San Francisco
Field Office received a complaint that an authorized United
States government user was receiving harmful interference
that obstructed and interfered with satellite communications
from an unauthorized station operating on 297.530 MHz. On
April 19, 2004, San Francisco Office field agents, using
electronic direction finding techniques, detected
transmissions on 297.530 MHz. The agents took bearings of
the radio signal which indicated the source of the signal to
be a station in the vicinity of the residence at 4691
Christenson Street, Brentwood, California. As the agents
approached the Christenson Street address the bearings
changed direction indicating that the radio transmitting
device in use was mobile and was moving away from the area.
The field agents continued to take bearings and followed the
radio source from Brentwood to south of Antioch, California.
Later that day, the agents detected the signal again and
followed the bearings indicated by the direction finding
equipment to the front of the residence at 4691 Christenson
Street in Brentwood, California. There they saw Raimundo
Pereira Silva sitting in a white pickup truck registered
with the California Department of Motor Vehicles in his name
at that address.3
3. On April 20, 2004, the field agents again detected
transmissions on 297.530 MHz, with bearings again indicating
the source of the radio signal as the Christenson Street
residence. Silva was sitting in the white pickup truck
holding a radio transmitter microphone to his face. The
bearings indicated the source of the radio transmissions was
the white pickup truck.
4. On April 22, 2004, the field agents detected
transmissions on 297.530 MHz and took bearings that
indicated that the source of the signal was from the
residence at 4691 Christenson Street, Brentwood,
California.4 Later that day, the field agents again
detected transmissions from the residence. The field agents
detected Silva's transmissions emanating from the residence
over six miles to the south and east of the Christenson
Street address. The field agents also detected several
transmissions made by Silva on 297.530 MHz on May 27, 2004,
and May 28, 2004, while Silva was driving the white pickup
truck. On May 27, 2004, the field agents detected
transmissions by Silva over five miles from where he was
transmitting. The field agents confirmed with the
complainant that the transmissions on May 27, 2004 caused
harmful interference to the authorized users. The field
agents continued to monitor Silva's radio transmissions,
detecting operations by Silva on 297.530 MHz on numerous
occasions from September 22, 2004, to October 21, 2004. The
authorized user also continued to report harmful
interference during this interval.
5. According to Commission records, Raimundo P.
Silva, 4691 Christenson Street, Brentwood, California, was
issued a General Class, amateur radio operator license with
call sign KD6SXG, on February 23, 1993.5 The license was
renewed on October 31, 2003, and will expire on October 31,
2013. Pursuant to Section 97.103(a) of the Rules, licensed
amateur radio operators are responsible for the proper
operation of their stations in accordance with the
Commission's Rules.6 Licensed amateur operators are
authorized to operate on the frequencies listed Section
97.301 of the Rules, as designated by their operator class
and license.7 In order to use designated frequencies in the
amateur bands, amateur operators must follow the frequency
sharing requirements in Section 97.301 of the Rules and the
United States Table of Frequency Allocations (``Table''),
found in Sections 2.105 and 2.1068 of the Rules.9 The Table
lists the use of the frequency band 267 - 322 MHz as Federal
Government only.10 In the band 255 - 328.6 MHz, the fixed
and mobile services are limited to the military services.11
The use of the band 235 - 322 MHz is allocated on a primary
basis to the mobile-satellite service, limited to military
operations.12 A review of Commission records reveals no
record of a license for the use of 297.530 MHz issued to any
individual or entity in the vicinity of Brentwood,
California.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person
who willfully fails to comply substantially with the terms
and conditions of any license, or willfully fails to comply
with any of the provisions of the Act or of any rule,
regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed
knowingly.13 The term "repeated" means the commission or
omission of such act more than once or for more than one
day.14
7. Section 301 of the Act requires that no person
shall use or operate any apparatus for the transmission of
energy or communications or signal by radio except under and
in accordance with this Act and with a license granted under
the provisions of this Act.15 On April 19, 2004, April 20,
2004, April 22, 2004, May 27, 2004 and May 28, 2004, Silva,
without authorization, operated a radio transmitting
apparatus16 on the frequency 297.530 MHz, a frequency
reserved for United States government use. On numerous
additional occasions from September 22, 2004, to October 21,
2004, Silva, without authorization, operated a radio
transmitting apparatus on a frequency reserved for United
States government use. Silva's unauthorized radio
operations in April, May, September, and October, 2004,
caused harmful interference that obstructed and interfered
with satellite communications of authorized government
users. As a licensed amateur operator, Silva is required to
know which frequencies he is permitted to operate on. The
frequency 297.530 MHz is not one of those frequencies.
However, Silva continually operated on the frequency 297.530
MHz without authorization. Therefore, Silva's violation was
willful. His violation occurred on more than one day,
therefore, it was repeated.
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"), and Section 1.80 of the Rules, the base
forfeiture amount for operation without an instrument of
authorization for the service is $10,000.17 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 violations, and
with respect to the violator, the degree of culpability, and
history of prior offenses, ability to pay, and other such
matters as justice may require.18 Based on the criteria in
Section 503(b)(2)(D) of the Act, and the upward adjustment
criteria in the Forfeiture Policy Statement, we find that an
upward adjustment of the base forfeiture amount of $10,000
is warranted.19 Silva's apparent willful and repeated
unlicensed and unauthorized radio operation in a restricted
band is egregious. According to the evidence, Silva
operates radio transmission equipment on a frequency
reserved exclusively for the United States government.
Silva's unauthorized radio operations cause harmful
interference to the authorized users. Silva's radio
operations on the restricted frequency have been ongoing for
many months and continued into October, 2004. Considering
the entire record and applying the factors listed above, we
conclude a forfeiture in the amount of $20,000 is
appropriate.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules, Raimundo P. Silva is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty thousand dollars ($20,000) for violations of Section
301 of the Act.20
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, Raimundo P. Silva 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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West
Monroe, 8th Floor Mailroom, Chicago, IL 60661. Payment by
wire transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259.
12. The response, if any, must be mailed to San
Francisco District Office, Western Region, Enforcement
Bureau, Federal Communications Commission, 5653 Stoneridge
Drive, Suite 105, Pleasanton, California, 94588, and must
include the NAL/Acct. No. referenced in the caption.
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 for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.21
15. IT IS FURTHER ORDERED THAT a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by
Certified Mail, Return Receipt Requested, regular mail, and
hand-delivered to Raimundo P. Silva, 4691 Christenson
Street, Brentwood, California, 94513.
FEDERAL COMMUNICATIONS
COMMISSION
Thomas N. VanStavern
District Director
San Francisco Office
Western Region
_________________________
147 U.S.C. § 301.
247 U.S.C. § 503(b).
3California DMV records and drivers license photographs
enabled the field agents to identify Silva as the man in the
white pickup truck.
4At this time, the white Dodge pickup truck was present, but
no one was in the vehicle.
5In accordance with Part 97 of the Commission's Rules,
operation of an amateur station requires an amateur operator
license grant from the FCC. Before receiving a license
grant, an applicant must pass an examination which contains
one telegraphy (Morse Code) element and three written
elements which establish the applicant's level of
operational and technical ability in performing properly the
duties of an amateur service licensee. The class for which
each examinee is qualified is determined by the degree of
skill and knowledge in operating a station that the examinee
demonstrates at the examination. There are six classes of
amateur operator licenses. The higher the license class,
the more expertise the licensee must demonstrate and the
greater the frequency privileges the amateur operator is
authorized. In ascending order, the classes of amateur
operator license grants are: Novice, Technician, Technician
Plus, General, Advanced and Amateur Extra. See 1998
Biennial Regulatory Review - Amendment of Part 97 of the
Commission's Amateur Service Rules, 13 FCC Rcd 15798 (1998).
647 C.F.R. § 97.103(a).
747 C.F.R. § 97.301.
847 C.F.R. §§ 2.105, 2.106.
9See 47 C.F.R. § 97.303.
1047 C.F.R. § 2.106.
1147 C.F.R. § 2.106, Federal Government Footnote G27.
1247 C.F.R. § 2.106, Federal Government Footnote G100.
13Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under 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 or any rule or
regulation of the Commission authorized by this Act...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
14Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to violations for which forfeitures are
assessed under 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."
1547 U.S.C. § 301.
16The field agents detected the signal from Silva's
transmission over five miles from the location of his radio
apparatus. This would indicate that the radio transmitting
device used by Silva is not compliant with Section 15.209(a)
of the Rules. 47 C.F.R. § 15.209(a). Part 15 devices,
which are non-licensed, low power devices, typically have a
range of less than one mile.
1712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999); 47 C.F.R. §1.80.
1847 U.S.C. § 503(b)(2)(D).
1947 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4); see also
Forfeiture Policy Statement, 12 FCC Rcd at 17100 - 01.
2047 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.
21See 47 C.F.R. § 1.1914.