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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-09-LA-0026
Kevin W. Bondy
) NAL/Acct. No.: 200932900004
Licensee of WQGX752
) FRN: 0016490633
Encino, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 14, 2009
By the District Director Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Kevin W. Bondy ("Bondy"), licensee of GMRS station WQGX752, in
Encino, California, apparently willfully and repeatedly violated
Sections 301 and 333 of the Communications Act of 1934, as amended
("Act"), and Section 95.183(a)(5) of the Commission's Rules
("Rules"), by engaging in unlicensed radio operation and intentional
interference to licensed radio operations; and apparently willfully
violated Section 303(n) of the Act and Section 95.115 of the Rules by
failing to allow an inspection of his radio equipment by Commission
personnel. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Mr. Bondy is
apparently liable for a forfeiture in the amount of twenty-four
thousand dollars ($24,000).
II. BACKGROUND
2. On February 25, 2009, the Los Angeles Office received a complaint from
the security manager for The Oaks Shopping Center ("The Oaks"),
located at 350 West Hillcrest Drive, Thousand Oaks, California. The
Oaks is the licensee of land mobile radio station KOA995, with
authority to operate on 461.375 MHz, 462.525 MHz, and 467.525 MHz. The
Oaks is also the licensee of land mobile radio station KG9712, with
authority to operate on 466.375 MHz.
3. On February 26, 2009, an agent from the Enforcement Bureau's Los
Angeles Office contacted the security manager regarding the complaint.
The security manager stated that someone was intentionally interfering
with their maintenance operations on 462.525/467.525 MHz and their
security operations on 461.375/466.375 MHz. The security manager also
stated that this person was harassing stores in The Oaks. According to
the security manager, the person in question had told The Oaks to stop
using 461.375MHz, their security repeater input frequency.
4. On March 5, 2009, the Los Angeles agent, using a mobile direction
finding ("MDF") vehicle, located the source of pulsating signals on
461.375/466.375 MHz, apparently intended to interfere with normal
transmissions on those frequencies, to a repeater located within a
secured radio communications facility on Oat Mountain in the Santa
Susana Mountains. The agent observed that the radio equipment which
was the source of the pulsating signals, included a beam antenna
pointed in the direction of Thousand Oaks.
5. On March 6, 2009, the agent monitored 461.375/466.375 MHz in the
vicinity of The Oaks and observed pulsating signals apparently
designed to interfere with normal transmissions on those frequencies.
Later that day, in consultation with personnel from The Oaks and the
Ventura County Sherriff's Department, the Los Angeles agent attempted
to locate the originating subject source of the transmissions while
personnel from The Oaks spoke to the unknown operator on 464.7125 MHz
and 462.8375 MHz. The Los Angeles agent instructed The Oaks personnel
to keep the subject talking for as long as possible so that the agent
could locate the origin of the transmissions.
6. While the Los Angeles agent attempted to locate the source of the
transmissions on 464.7125 MHz and 462.8375 MHz, The Oaks personnel
spoke to the subject. During this time, the subject told The Oaks
personnel that they had "plenty of warning." The subject then
effectively shut down all operations on The Oaks frequencies by
transmitting NOAA weather radio over every channel. The subject then
told Oaks personnel that he had been "jamming" the 461.375/466.375
frequencies by "pulsing" them to shut down the repeater. The subject
also said that The Oaks now had no repeaters, that the Oaks had to
stop using the 461.375/466.375 MHz repeater pair and that The Oaks had
to apply to the FCC to cancel the 461.375/466.375 MHz repeater pair
and request a new frequency pair because "we need the channel." The
subject said that he gave The Oaks three weeks to vacate the
frequencies but The Oaks did not, so "this is what we've come to." The
subject then explained in detail to the Oaks personnel how to work
with the FCC and frequency coordinators to apply for a new frequency
for their license.
7. Later on March 6, 2009, at approximately 7:30 p.m., the Los Angeles
agent, using a MDF vehicle, located the originating source of the
transmissions on 464.7125 MHz and 462.8375 MHz to a vehicle located on
the National Park Service parking structure across the street from The
Oaks. The Ventura County Sheriff's Department then secured the area
and identified the subject as Kevin Bondy. The Los Angeles agent
identified himself to Bondy and explained that a refusal to allow an
inspection could result in a fine. Then the agent asked Bondy if he
could perform an inspection of all radios in his vehicle. Initially,
Bondy refused to allow an inspection, then later agreed to allow an
inspection, then refused again. Bondy's refusal was witnessed by
Ventura County Sheriff's Department deputies.
8. On March 9, 2009, the Los Angeles agent revisited the radio
communications facility on Oat Mountain and observed that the beam
antenna had been removed and the interference to The Oaks radio
systems had ceased.
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) 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 "[n]o person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio ... except under and in accordance with this Act and
with a license in that behalf granted under the provisions of this
Act." Although Bondy is a General Mobile Radio Service (GMRS) licensee
under Part 95 of the Rules, he has no authorization to operate on
461.375 MHz, 466.375 MHz, 464.7125 MHz or 462.8375 MHz. On March 6,
2009, Bondy admitted during his transmissions that he was aware of
which frequencies he was operating on, therefore, his violation was
willful. The violation occurred on more than one day, therefore, it
was repeated. Based on the evidence before us, we find that Bondy
apparently willfully and repeatedly violated Section 301 of the Act.
11. Section 333 of the Act states that "[n]o person shall willfully or
maliciously interfere with or cause interference to any radio
communications of any station licensed or authorized by or under the
Act or operated by the United States government." Section 95.183(a)(5)
of the Rules states that a GMRS station operator must not communicate
intentional interference. On March 6, 2009, Bondy acknowledged in his
transmissions that he was causing intentional interference to The
Oaks' authorized operations on 461.375 MHz and 466.375 MHz, in a
successful effort to render The Oaks' repeater unusable and to force
The Oaks off their licensed channels. Bondy admitted to causing the
intentional interference, therefore, the violation was willful. The
violation occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Bondy apparently
willfully and repeatedly violated Section 333 of the Act and Section
95.183(a)(5) of the Rules.
12. Section 303(n) of the Act states "the Commission . . . shall have
authority to inspect all radio installations . . . ." Section 95.115
of the Rules states that "[i]f an authorized FCC representative
requests to inspect any station in a GMRS system, the licensee or
station operator must make the station available." On March 6, 2009,
an agent from the Commission's Los Angeles Office requested an
inspection of Bondy's radio equipment. Bondy initially agreed to the
inspection but then refused. Bondy was aware of the requirement to
make his radio equipment available to the agent, as the agent
explained the requirement to Bondy. Consequently, we find that Bondy
apparently willfully violated Section 303(n) of the Act and Section
95.183(a)(5) of the Rules.
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 unlicensed operation is $10,000; the base
forfeiture for interference is $7,000; and the base forfeiture for
failing to permit inspection 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,
and the statutory factors to the instant case, we conclude that Bondy
is apparently liable for a $24,000 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, Kevin W. Bondy is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-four thousand dollars ($24,000) for violations of Sections
301, 303(n), and 333 of the Communications Act of 1934, as amended,
and Sections 95.115 and 95.183(a)(5) of the Rules.
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, Kevin W. Bondy 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. Kevin W. Bondy will also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, California, 90703 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
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 Kevin W. Bondy at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 U.S.C. S:S: 301, 333.
47 C.F.R. S: 95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
47 U.S.C. S: 503(b).
We note that The Oats had no authorization to operate on 464.7125 MHz and
462.8375 MHz, however, they used those frequencies to communicate with the
subject, and other personnel, because of the continual jamming of their
authorized frequencies.
The agent observed that the vehicle contained a console mount radio, a
hand handle radio, and a mobile radio unit in the back seat. The agent was
not able to inspect any of these devices because of Bondy's refusal.
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 U.S.C. S: 301.
47 U.S.C. S: 333.
47 C.F.R. S: 95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
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:S: 503(b), 301, 303(n), 333; 47 C.F.R. S:S: 0.111, 0.311,
0.314, 1.80, 95.115, 95.183(a)(5).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission