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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-CF-0119
David E. Perka ) NAL/Acct. No.: 200932340001
Annapolis, Maryland ) FRN: 0008202053
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 27, 2009
By the Acting District Director, Columbia Field Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that David Edward Perka ("Perka"), amateur radio licensee KA3PRB,
apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended ("Act"), by operating without a
license in the Maritime Radio Service and apparently willfully
violated Section 333 of the Act by maliciously interfering with the
United States Coast Guard ("USCG") on the International Distress,
Safety and Calling Channel in Annapolis, Maryland. We conclude,
pursuant to Section 503(b) of the Act, that Mr. Perka is apparently
liable for a forfeiture in the amount of seventeen thousand dollars
($17,000).
II. BACKGROUND
2. On April 6, 2008, the Commission's Columbia Field Office ("Columbia
Office") was notified by the FCC Communications and Crisis Management
Center that the U.S. Coast Guard ("USCG") in Annapolis, Maryland, was
experiencing interference intermittently throughout the day to the
frequency 156.800 MHz, which is the international radiotelephone
distress, urgency, safety, call and reply frequency for ship, public
and private coast stations, typically referred to as "Marine Channel
16". The Columbia Office's District Director called the USCG and
learned that the intruder, a male individual, had been on Marine
Channel 16 intermittently since 5:00 a.m., harassing the USCG and
interfering with its communications, including safety bulletins. The
interfering transmissions consisted of the subject speaking as well as
tones from a Dual-Tone Multi-Frequency (DTMF) keypad. There had been a
five hour break between the intruder's early-morning transmissions and
approximately 4:30 p.m. when the USCG contacted the FCC. The District
Director advised the USCG that the Columbia Office would investigate
the incident that evening.
3. At approximately 6:00 p.m., FCC agents arrived in Annapolis, Maryland
and began monitoring Marine Channel 16. The subject was not heard when
the agents first arrived in Annapolis, but at approximately 6:20 p.m.,
the agents heard very weak transmissions from what they believed to be
the subject. The agents repositioned their direction-finding (DF)
vehicle to the area indicated by the DF bearings and shortly
afterward, at about 6:45 p.m., the agents heard short clicks that were
stronger than the previous transmissions, but the transmissions
stopped and did not return.
4. At approximately 8:00 p.m., having not heard activity for over an
hour, the agents departed the area. While leaving the area, the agents
continued to monitor Marine Channel 16 in the DF vehicle. At
approximately 8:20 p.m., the agents heard the USCG responding to
transmissions that seemed to be the same subject, based on the nature
of the USCG radio operator's response. Within a minute, the agents
received a phone call from the USCG that the subject had resumed
operating on Marine Channel 16.
5. The agents proceeded back to the area they had identified earlier
based on bearings and signal strength. At approximately 8:40 p.m., as
the agents reached the area of interest, they heard the subject on
Marine Channel 16 continue to converse with the USCG radio operator
about vacating the safety calling channel. As the subject continued to
transmit, the agents, using direction-finding techniques, traced the
signal to a neighborhood of town homes near the intersection of Forest
Drive and Hilltop Lane, about three miles from where they last heard
the subject at 6:45 p.m. Once inside the town home community, the
agents were able to narrow the source of the signal to the middle
units of a specific row of town homes on Heritage Court, specifically
51, 53 and 55 Heritage Court. No antennas were visible. While
attempting to identify the source of the interfering signal, the
agents heard the subject make threats to the USCG telling them to
"move their boats" and related statements. At approximately 9:00 p.m.,
the subject informed the USCG that he was not going to make anymore
transmissions for the night. Shortly after that, he ceased operating
and the DF bearing could not be further refined to a specific town
home unit. Prior to leaving the area, the agents searched for any
visible antennas, of which there were none. The agents also recorded
the license plate numbers of the cars parked near 51, 53 and 55
Heritage Court, one of which agents later determined was associated
with Perka.
6. On April 7, 2008, agents returned to the area of interest and
inspected the block of town homes (51, 53 and 55 Heritage Court,
Annapolis, MD) for further evidence of an antenna. Again, no outside
antennas were visible. Most of the residents' vehicles were gone.
After checking the area, the agents pulled into a shopping area to
wait and listen for any activity on Marine Channel 16. At
approximately 12:00 p.m., the agents heard a tone come across the
speaker that was strong, indicating the signal was very near. The tone
lasted for about 30 seconds, giving the agents enough time to DF the
signal. The agents captured a bearing indicating that the signal was
coming from the direction of the neighborhood where the town homes
were located the previous evening. While traveling in the direction of
the town homes, the DF in the FCC vehicle indicated that the signal
was coming from behind the FCC vehicle and was growing stronger,
suggesting a mobile operator. Shortly thereafter, the signal strength
peaked and the bearing indication rotated around to indicate the
source was now in front of the FCC vehicle. The car had a magnetic
whip antenna mounted on the roof. Based on the license plate, agents
were able to determine that this car was one of the cars observed in
the parking lot in front of the town homes the previous evening. The
tones were DTMF tones, similar to tones heard in some of the
disruptive transmissions recorded by the USCG on April 6, 2008.
7. The agents followed the suspect to a local liquor store, the Annapolis
Wine & Spirits, located at 1307 Forest Drive in Annapolis. The agents
contacted the USCG special agent to advise him that they had located
the subject. While the subject was in the store, one of the agents
stepped out of the car and observed amateur radio equipment on the
center console of the subject's car. The agents waited for the subject
to return to his car for questioning. When the subject returned to his
car, the FCC agent approached him for questioning about his radio. The
subject identified himself as David E. Perka and produced a driver's
license, which indicated that he resided at 51 Heritage Court. In
response to questions from the FCC agents, Perka admitted to
transmitting on Marine Channel 16 and harassing the USCG on April 6,
2008. Perka claimed he wanted the USCG to "move their boats."
8. When the USCG special agent arrived in the parking lot of the liquor
store, he proceeded to interview the subject with the FCC agents.
Perka repeated to the USCG special agent what he told the FCC agents
regarding his transmissions on Marine Channel 16 both that day in his
car and the day before, stating that he wanted the USCG to "move their
boats." Perka voluntarily turned over the radio in his car to the USCG
special agent.
III. DISCUSSION
9. 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.
10. 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.
Section 80.13 of the Commission's Rules provides generally that
"stations in the maritime service must be licensed by the FCC either
individually or by fleet." As described above, FCC agents determined
that, on April 6 and April 7, 2008, Perka operated on Marine Channel
16. Although Perka holds an amateur license, he does not hold a
license to operate in the Maritime Service. Because Perka admitted to
FCC agents and to the USCG special agent that he operated on Marine
Channel 16, we find that Perka willfully violated Section 301 of the
Act. The violation occurred on more than one day; therefore, the
violation was repeated.
11. Section 333 of the Act states that no person shall willfully or
maliciously interfere with, or cause interference to, any radio
communications of any station licensed or authorized by or under this
Act or operated by the United States Government. The legislative
history for Section 333 identifies willful and malicious interference
as "intentional jamming, deliberate transmission on top of the
transmissions of authorized users already using specific frequencies
in order to obstruct their communications, repeated interruptions, and
the use and transmission of whistles, tapes, records, or other types
of noisemaking devices to interfere with the communications or radio
signals of other stations." On April 6, 2008, the USCG reported to the
Columbia Office that an unknown subject was interfering with its
communications on Marine Channel 16, including safety bulletins, by
using harassing language and activating DTMF tones. Later that
evening, FCC agents heard the subject's harassing transmissions on
Marine Channel 16 and, using mobile direction finding equipment,
traced the source of the signal to a group of town homes, one of which
FCC agents later determined was Perka's residence. During an interview
with FCC agents and a USCG special agent, on April 7, 2008, Perka
admitted to transmitting on Marine Channel 16 and harassing the USCG
the previous day. Because Perka admitted to knowingly interfering with
USCG communications, we find that he willfully violated Section 333 of
the Act.
12. In sum, based on the evidence before us, we find that Perka
apparently, willfully and repeatedly operated in the Maritime Radio
Service without a license in violation of Section 301 of the Act and
apparently willfully violated Section 333 of the Act by maliciously
interfering with USCG communications on Marine Channel 16.
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 and the base forfeiture amount for
interference is $7,000. 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 of the
Rules, and the statutory factors to the instant case, we conclude that
Perka is apparently liable for a $17,000 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, David E. Perka is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seventeen thousand dollars ($17,000) for violations of Sections 301
and 333 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, David E. Perka 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. If payment is made, Perka should send
electronic notification on the date said payment is made to
NER-Response@fcc.gov.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Columbia Field
Office, 9200 Farm House Lane, Columbia, Maryland, 21046 and must
include the NAL/Account Number 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 David Edward Perka at his address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Richard M. Caine
Acting District Director
Columbia Field Office
Northeast Region
Enforcement Bureau
47 U.S.C. S:S: 301, 333.
47 U.S.C. S: 503(b).
See infra at para. 7.
Because of possible evidence of alcohol use, the Annapolis police were
contacted and they arrested Perka for having an open alcohol container in
his car.
On May 23, 2008, the USCG interviewed Perka again. During that interview,
Perka apologized for making the "broadcasts" and voluntarily relinquished
all rights to the radio that he had turned over to the USCG on April 7,
2008.
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: 80.13. Although there are certain circumstances under which a
ship station is licensed by rule, the instant case does not involve a ship
station and therefore the exceptions to the individual license requirement
are not applicable. See 47 C.F.R. S: 80.13(c).
H.R. Rep. No. 101-316, at 13 (1989).
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).
We warn Perka that any future misconduct with radio transmission equipment
could result in more serious sanctions, including a license revocation
proceeding with regard to his amateur license.
47 U.S.C. S:S: 301, 333.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission