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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Joni K. Craig ) File Number: EB-04-SD-163
)
San Diego, California ) NAL/Acct. No. 200632940002
)
) FRN 0014413157
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 19,
2005
By the District Director, San Diego District Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Joni K. Craig, (``Craig'') apparently
willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended (``Act''),1 by operating
an unlicensed radio transmitter on 106.9 MHz in San Diego,
California. We conclude, pursuant to Section 503(b) of the
Act,2 that Craig is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On July 26, 2005, agents from the Commission's San
Diego Office monitored 106.9 MHz in the San Diego area and used
mobile direction finding techniques to locate broadcast
transmissions on 106.9 MHz emanating from a converted garage
behind Craig's residence in the City Heights area of San Diego.
The agents took field strength measurements and determined that
the signals being broadcast exceeded the limits for operation
under Part 15 of the Commission's Rules (``Rules'') and
therefore required a license.3 According to FCC records,
neither Craig, nor any other person or entity, holds an
authorization to broadcast on that frequency from that
location.
3. San Diego agents had previously interviewed Craig about
the unlicensed radio station in her garage. On October 4,
2004, the agents used mobile direction finding techniques to
locate broadcast transmissions on 106.9 MHz emanating from
Craig's residence. The agents noted that the source of the
radio signal was an antenna atop a detached garage in the rear
of the residence. The agents took field strength measurements
and determined that the signals being broadcast exceeded the
limits for operation under Part 15 and therefore required a
license.4 When agents attempted to inspect the radio station
in her garage, Craig refused to allow the inspection. She
claimed to have no knowledge of a radio station and that some
other people were working on a project in her garage. The
agents departed after orally warning Craig not to operate an
unlicensed radio station. On October 5, 2004, the San Diego
Office sent Craig a detailed Notice of Unlicensed Operation,
which gave Craig an opportunity to reply.5 No reply was
received.
4. On November 10, 2004, San Diego agents monitored 106.9
MHz in the San Diego, California area and used mobile direction
finding techniques to locate broadcast transmissions on 106.9
MHz emanating from Craig's garage. The agents took field
strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of
the Rules and therefore required a license.6 The agents then
approached the residence and identified themselves to Craig.
The agents again requested an inspection. Craig agreed to the
inspection, unlocked the garage, and gave the agents access to
its contents, which included a radio transmitter, a computer
and an internet modem, all in operation. The electricity for
the operation came off the main power line to the garage. The
current then ran from the garage to Craig's residence, via
underground cables. The radio station's power switch was
visible and easily accessible. The agents requested that Craig
shut down the unlicensed radio station, but she again refused,
explaining that she could shut down the station but would not
as it belonged to someone else. She told the agents that she
would have the people who owned the equipment shut down the
transmitter. When she was asked who the owner of the radio
equipment was, she refused to answer. The agents left the
premises after verbally warning Craig again not to continue to
operate an unlicensed radio station. Despite the warnings,
subsequent monitoring by San Diego agents, on November 16,
2004, and November 19, 2004, revealed that the station
continued to operate from Craig's garage.7
5. After finding that the station was still active on July
26, 2005, San Diego agents, on August 2, 2005,8 hand-delivered
another Notice of Unlicensed Operation to Craig, which again
gave Craig an opportunity to reply. The agents advised Craig
that if the unlicensed radio operation did not cease
immediately, she could receive a NAL and may be found liable
for forfeiture in the amount of ten thousand dollars. A copy
of the Notice sent via Certified Mail and regular mail was
posted later that day as well.9 No reply from Craig was
received.
6. On August 3, 2005, San Diego agents monitored 106.9 MHz
in the San Diego, California area and found no station active.
7. On August 26, 2005, San Diego agents monitored 106.9
MHz in the San Diego, California area and used mobile direction
finding techniques to locate broadcast transmissions on 106.9
MHz emanating from Craig's garage. The agents took field
strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of
the Rules and therefore required a license.10 No inspection of
the station was attempted.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
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.11 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.12
9. Section 301 of the Act requires 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.
Section 3(33) of the Act defines ``communications by radio'' as
``the transmission by radio of writing, signs, signals,
pictures, and sounds of all kinds, including all
instrumentalities, facilities, apparatus, and services (among
other thing the receipt, forwarding, and delivery of
communications) incidental to such transmission.''13 On
October 4, 2004, November 10, 2004, November 16, 2004, November
19, 2004, July 26, 2005, August 2, 2005 and August 26, 2005,
Craig provided services and facilities incidental to the
transmission of communications by radio occurring on 106.9 MHz
in San Diego, California.14 Specifically, Craig provided the
garage and real property on which the operation took place, and
provided the electric current used to power the radio station.
Consequently, she apparently participated in the operation of
the unlicensed station.15 Craig also acknowledged that she was
aware that the station was operating on her property,
apparently, with her permission. While Craig admitted that she
could turn the station off, evidencing her control over the
station, she refused to do so. Craig provided access to the
garage that housed the station, also demonstrating her control
over the station. The Commission has said in the past that
``'control' will be defined to include . . . any means of
actual working control over the operation of the [station] in
whatever manner exercised.''16
10. Craig was warned repeatedly by
San Diego agents, both orally and in writing, over a period of
several months, that an unlicensed radio station was operating
from her property and that she would be held liable for its
operation. Because Craig failed to stop the operation of the
station after she received repeated notices and warnings that
operation of the station was unauthorized, her violation is
willful. Craig's violation occurred on more than one day,
therefore, it is repeated. Based on the evidence before us, we
find Craig apparently willfully and repeatedly violated Section
301 of the Act by operating radio transmission apparatus
without a license on 106.9 MHz.
11. 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 operating without an instrument of authorization 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 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we find
that Craig is apparently liable for a forfeiture of $10,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311, 0.314, and 1.80 of the Commission's
Rules, Joni K. Craig is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violation of Section 301 of the Act.19
13. 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, Joni K. Craig 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 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 Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
San Diego District Office, 4542 Ruffner St., Suite 370, San
Diego, CA 92111, and must include the NAL/Acct. No. referenced
in the caption.
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 for Forfeiture under an
installment plan should be sent to: Associate Managing
Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., Washington, D.C. 20554.20
18. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Joni K.
Craig.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego District Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
247 U.S.C. § 50
3Section 15.239 of the Rules provides that non-licensed
broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 ?V/m at
three meters. The measurements made on July 26, 2005, indicated
that the signal was 1,916 times greater than the maximum
permissible level for a non-licensed Part 15 transmitter.
4On October 4, 2004, the measurements indicated that the signal
was 1,986 times greater than the maximum permissible level for
non-licensed Part 15 transmitters.
5The San Diego Office received a receipt from the U.S. Postal
Service indicating that the Notice of Unlicensed Operation had
been received.
6The measurements made on November 10, 2004, indicated that the
signal was 2,422 times greater than the maximum permissible level
for a non-licensed Part 15 transmitter.
7The measurements made on November 16, 2004, indicated that the
signal was 5,473 times greater than the maximum permissible level
for a non-licensed Part 15 transmitter. The measurements made on
November 19, 2004, indicated that the signal was 5,357 times
greater than the maximum permissible level for a non-licensed
Part 15 transmitter.
8Prior to the inspection on August 2, 2005, the agents took field
strength measurements and determined that the signal being
broadcast was 2,167 times greater than the maximum permissible
level for a non-licensed Part 15 transmitter.
9The San Diego Office received a receipt from the U.S. Postal
Service indicating that the Notice of Unlicensed Operation had
been received.
10The measurements made on August 26, 2005, indicated that the
signal was 4,571 times greater than the maximum permissible level
for a non-licensed Part 15 transmitter.
11Section 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).
12Section 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.''
1347 U.S.C. § 153(33).
14Under Section 503(b)(6) of the Act, 47 U.S.C. §503(b)(6), we
may only propose forfeitures to non-licensees for apparent
violations that occurred within one year of the date of this NAL.
However, Section 503(b) does not bar us from assessing whether
Craig's conduct prior to that time period apparently violated the
Act in determining the appropriate forfeiture amount for those
violations that occurred within the one-year statute of
limitations. Inphonic, Inc., 2005 WL 1750418 (FCC 05-145,
released July 25, 2005) at ¶ 24.
15Section 3(35) of the Act defines ``radio station'' as a
``station equipped to engage in radio communication or radio
transmission of energy.'' 47 U.S.C. § 153(35).
16Revision of Rules and Policies for the Direct Broadcast
Satellite Service, 11 FCC Rcd 9712, 9747 (1995). Petition for
Review Denied by DIRECTV, Inc. v. FCC, 110 F.3d 816 (D.C. Cir.
1997).
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), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.
20See 47 C.F.R. § 1.1914.