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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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In the Matter of File Number: EB-07-BS-164
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John Doe NAL/Acct. No: 200832260001
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Jamaica Plain, MA FRN: 0007823198
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 27, 2007
By the District Director, Boston Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that John Doe ("Doe") apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
operating radio transmission equipment in Jamaica Plain,
Massachusetts, on land mobile channels reserved exclusively for use by
public safety entities. We conclude, pursuant to Section 503(b) of the
Act, that Doe is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On October 22, 2007, the Boston Police Department reported by
telephone to the Boston Office of the FCC's Enforcement Bureau that it
was receiving interference to its radio communications system.
Specifically, the Telecommunications Director for the Boston Police
Department stated that, while it had been receiving interference
intermittently over many weeks, it had in the past week begun
receiving more interference on police radio Channel 4. Because the
interference was intermittent, the Telecommunications Director advised
the Boston Office that he would provide additional information so that
agents would know the best time of day to try to locate the
interfering signal with FCC direction finding equipment.
3. On October 25, 2007, the Telecommunications Director contacted the
Boston Office and reported that, on October 24, 2007, police officers
had arrested Doe, who admitted to operating on police radio channels.
According to the police reports submitted to the Boston Office, Doe
admitted at the time of his arrest on October 24, 2007, to purchasing
the radios in April 2007 and providing the radio vendors with Boston
Police radio codes so that the radios could be programmed with those
channels. Doe stated to police on October 24, 2007, that he had
discovered that his transmissions were disrupting police radio
communications three days prior, i.e., beginning on October 21, 2007.
At the time of the arrest, police confiscated two radios, a Yaesu
radio transceiver and a Motorola two-way handheld radio transceiver.
4. The police report also indicates that another individual interviewed
by police officers admitted to being with Doe on October 24, 2007, and
observed Doe communicating on a hand-held radio with a Boston Police
dispatcher.
5. On October 25, 2007, an agent with the FCC's Boston Office met with
Boston police and examined the radios confiscated from Doe. The agent
confirmed that the radios were programmed with Boston Police radio
Channel 4, as well as Channel 1. The agent also determined that the
Yaesu transceiver was capable of emitting a tone that measures
approximately 1740 Hz. This type of tone is not typically found on
public safety radios and can be easily identified when monitoring
radio transmissions.
6. On November 15, 2007, the Telecommunications Director with the Boston
Police Department stated to the FCC agent that no incidents of
interference have been reported to the Boston Police Department radio
system since October 24, 2007, the date of the subject's arrest.
7. On November 20, 2007, the Boston Police Department submitted a log
showing the dates and times the police radio system received
interference from a radio transceiver that was emitting a tone similar
to the tone that Doe's Yaesu transmitter emits. Specifically, the log
shows that, during the three day period during which Doe admits to
knowingly operating on police Channel 4, i.e., October 21, 2007 to
October 24, 2007, there were seven instances in which normal police
transmissions were interrupted by a tone similar to the tone the Yaesu
transmitter emits.
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) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
9. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license granted under the provisions of the Act.
Pursuant to Section 90.20 of the Rules, as a general matter, only
public safety entities are eligible to obtain licenses in the Public
Safety Pool. On October 24, 2007, Doe admitted to operating on police
radio Channel 4, which is associated with a frequency designated in
the Public Safety Pool for use by the police. An inspection by FCC
agents of the radio transceivers confiscated by Boston Police officers
from Doe confirmed that such radios were programmed with police
Channels 1 and 4. A review of the police radio transmission logs
confirmed seven instances between October 21, 2007 and October 24,
2007, during which police radio transmissions were interrupted by a
transmission that carried a unique tone that FCC agents determined is
emitted by the Yaesu transceiver found in Doe's possession. Based on
the evidence before us, we find that Doe willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
equipment on public safety frequencies in Jamaica Plain,
Massachusetts, without Commission authorization.
10. 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 is $10,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(E) 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, we conclude that a $10,000 forfeiture is
warranted.
IV. ORDERING CLAUSES
11. 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, John Doe 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.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, John Doe SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Boston Office, One
Batterymarch Park, Quincy, Massachusetts 02169, within thirty (30)
days from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
15. 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.
16. 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, 1A625, 445 12th
Street, S.W., Washington, D.C. 20554.
17. 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 John Doe at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director
Boston Office
Northeast Region
Enforcement Bureau
Name redacted due to age of individual.
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
We note that Doe holds a technician class amateur license, call sign XXXX.
Doe was arrested on charges unrelated to his operation on police radio
channels.
The police report submitted to the Boston Office is in the form of a
memorandum from Sergeant Detective Robert Kjersgard, #11621, to Captain
Christine Michalosky, Area E-13 Commander, dated October 29, 2007 (CC #
070598288).
The agent also observed that the radios were programmed with many other
channels that are not authorized for private use, e.g., police detective
channels, fire department channels, and housing authority channels.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
47 C.F.R. S: 90.20.
See 47 C.F.R. S: 90.20(c)(3) (designating the frequency XXX MHz in the
Public Safety Pool for use by police).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S:S: 0.111, and 0.311, 47 U.S.C. S: 301.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission