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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-BS-095
Richard Clouden ) NAL/Acct. No.: 200832260003
Boston, MA ) FRN: 0017641580
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 8, 2008
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 Richard Clouden ("Clouden") apparently willfully and repeatedly
violated Section 301 of the Communication Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
101.3 MHz in the Dorchester neighborhood of Boston, MA. We conclude,
pursuant to Section 503(b) of the Act, that Clouden is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On July 10, 2007, the Boston Office received a complaint from counsel
for a licensed station regarding interference caused by an apparent
unlicensed station operating on 101.3 MHz in Boston, MA.
3. On July 11, 2007, agents from the FCC's Boston Office, using a mobile
direction finding vehicle, monitored the frequency 101.3 MHz in
Boston, MA. The agents observed a radio broadcast on 101.3 MHz and
identified the source of the transmissions as an antenna mounted on
the roof of a multi-unit commercial building at 616 Blue Hill Ave.,
Boston, MA. 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 the station required a license. An agent searched Commission
databases and found no evidence of a Commission authorization for this
operation on 101.3 MHz in Boston, MA.
4. On July 12, 2007, the agents again observed a signal on 101.3 MHz in
Boston, MA and, using mobile direction finding techniques, identified
the source of the signal as the same transmitter site located at 616
Blue Hill Ave., Boston, MA. The agents entered one of the businesses
at the site location and spoke with the building owner, who stated he
did not have access to the room where the transmitter is located, but
that the station is being run by Richard Clouden. The agents then
spoke to Clouden at his place of work, Technique Collision, which is
located at 10 Old Rd. Boston, MA 02121. Clouden stated to the agents
that he owns and operates the radio station. When agents asked to
conduct a station inspection, Clouden stated that he did not have
access to the transmitter site at the time. Clouden also informed
agents that the studio was located at 11 Humphreys Street, which
agents later determined was located in the Roxbury section of Boston,
MA.
5. On July 26, 2007, the Boston Office issued a Notice of Unlicensed
Operation ("NOUO") to Clouden for the unlicensed operation on July 11,
2007, in Boston, MA. The NOUO was sent via certified mail and regular
mail to his home address. No response was ever received.
6. On August 15, 2007, agents observed a signal on 101.3 MHz in Boston,
MA and, using mobile direction finding techniques, identified the
source of the signal as the same transmitter site located at 616 Blue
Hill Ave., Boston, MA. 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. The agent searched Commission databases and found no evidence
of a Commission authorization for operation on 101.3 MHz in Boston,
MA. Also on this date, agents attempted an inspection at the alleged
studio location at 11 Humphreys Street, but no one answered when
agents knocked on the door.
7. On March 11, 2008, agents again observed a signal on 101.3 MHz in
Boston, MA and, using mobile direction finding techniques, identified
the source of the signal as the same transmitter site located at 616
Blue Hill Ave., Boston, MA. 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.
8. After taking the field strength measurements, agents proceeded to
Clouden's place of work, Technique Collision. Clouden again admitted
to operating the station and stated that the station's transmitter is
located on top of the building at 616 Blue Hill Avenue. When agents
asked to inspect the transmitter site, Clouden again stated that he
did not have access to the site at the time.
9. On March 17, 2008, agents returned to Clouden's place of work and
asked to conduct an inspection of the station's studio, which Clouden
previously had indicated was located at 11 Humphreys Street. The
agents followed Clouden by car to 11 Humphreys St. Suite 3 and
conducted an inspection of the station's studio equipment. During the
inspection, Clouden again admitted to operating the station.
III. DISCUSSION
10. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
11. 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 Rules and with a license issued by the Commission. Agents
determined that, on July 11, 2007, July 12, 2007, August 15, 2007, and
March 11, 2008, Clouden operated radio transmission equipment at 616
Blue Hill Avenue in Boston, MA without the required Commission
authorization. Clouden admitted to such operation during interviews
with agents on July 12, 2007, March 11, 2008, and March 17, 2008. In
light of Clouden's admission and his continued operation on August 15,
2007 and March 11, 2008, even after receiving a written warning on
July 26, 2007, we find that the violation was willful. The violation
occurred on more than one day, therefore, it is repeated.
12. Based on the evidence before us, we find that Clouden apparently
willfully and repeatedly violated Section 301 of the Act by operating
an FM radio transmitter without a license on 101.3 MHz in Boston, MA.
13. 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 to the instant case, we conclude that Clouden is
apparently liable for a ($10,000) forfeiture.
IV. ORDERING CLAUSES
14. 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, Richard Clouden is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Section 301 of the
Act.
15. 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, Richard Clouden SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Boston Office, 1
Batterymarch Park, Quincy, MA, 02169 and must include the NAL/Acct.
No. referenced in the caption.
18. 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.
19. 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 Richard Clouden at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director
Boston Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 301.
47 U.S.C. S: 503(b).
Section 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 micro volts per meter ("mV/m") at three
meters. 47 C.F.R. S: 15.239. Measurements showed that the field strength
of the station's signal exceeded the permissible level for a non-licensed
Part 15 transmitter.
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."
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 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission