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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File No. EB-01-LA-142
)
California Speedway ) NAL/Acct. No.
200232900002
Fontana, California )
) FRN# 0006-0339-97
FORFEITURE ORDER
Adopted: November 12, 2002 Released:
November 14, 2002
By the Chief, Enforcement Bureau:
INTRODUCTION
· In this Forfeiture Order (``Order''), we issue a monetary
forfeiture in the amount of eight thousand dollars
($8,000) to California Speedway for willful violation of
Section 301 of the Communications Act of 1934, as
amended1 (the ``Act''). The noted violation involves
operation of an unlicensed radio transmitter on FM
broadcast frequency 104.7 MHz.
2. On May 30, 2002, the District Director of the
Enforcement Bureau's Los Angeles, California Office (``Los
Angeles Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'') finding California Speedway apparently
liable for a forfeiture in the amount of $10,000 for willful
violation of Section 301 of the Act.2 On July 1, 2002,
California Speedway filed a response.3
BACKGROUND
3. On November 2, 2001, the Los Angeles Office received a
complaint alleging that California Speedway, which is
located in Fontana, California, was operating a radio
station on frequency 104.7 MHz. An agent from the Los
Angeles Office searched the Federal Communications
Commission's (``FCC'' or ``Commission'') license database
which revealed no license issued for the operation of an
FM broadcast station on 104.7 MHz in or around Fontana,
California and no broadcast authorization issued to
California Speedway.4 On November 8, 2001, an agent from
the Los Angeles Office spoke on the telephone with the
Director of Operations for California Speedway. The
Director of Operations stated that California Speedway
operates a one-watt transmitter on the frequency 104.7
MHz and that the transmitter was used only during events.
4. On November 14, 2001, the Los Angeles Office sent a
Notice of Unlicensed Radio Operation to California
Speedway.5 The Notice warned California Speedway that it
may be operating a radio station on frequency 104.7 MHz
without a license in violation of 47 U.S.C. § 301 and
that such operation could result in penalties. The
Notice directed the operator of the station to
discontinue operation immediately if it was operating
without an authorization. California Speedway did not
submit a written response to the Notice.
5. On March 22, 2002, an agent from the Los Angeles Office
once again spoke on the telephone with the Director of
Operations for California Speedway. During the
conversation, the agent orally advised that the operation
of the unlicensed radio station on 104.7 MHz could result
in a monetary forfeiture.
6. On March 24, 2002, agents from the Los Angeles Office
conducted an investigation at California Speedway. Using
a FCC Mobile Digital Direction Finding vehicle and
direction finding techniques, the agents detected radio
transmissions on frequency 104.7 MHz from a location in
the middle of the grounds of California Speedway. Field
strength measurements revealed that the radio emissions
exceeded the levels allowed for non-licensed operation
under Sections 15.209(a) and 15.239(b) of the
Commission's Rules (``Rules'').6 The measured field
strength was 63,500 µV/m or 254 times that permitted by
the rules.
7. California Speedway argues that the facts cited in the
NAL do not support the conclusion that it engaged in
unlicensed operation.7 It argues that the NAL cites only
that California Speedway's equipment exceeded permissible
emission limits.8 Although, according to California
Speedway, this suggests a possible violation for
unauthorized emissions or exceeding power limits, this is
insufficient evidence to establish unlicensed operation.9
California Speedway also claims that it was not provided
with documentation of the March 24 measurement and thus
it cannot assess whether or not the violation occurred or
whether imposition of the base forfeiture amount was
justified.10 California Speedway also claims that it was
never told that it was prohibited from operating the
equipment.11
8. California Speedway next argues that, assuming
arguendo, a violation of 47 U.S.C.
§ 301 occurred, the NAL did not take into account facts
warranting reduction or cancellation of the forfeiture.12
California Speedway argues that the violation was minor because
there is no evidence of substantial harm to any third party or
that the violation was egregious, continuing or repeated.13
Further, it argues that there is no evidence that California
Speedway derived substantial gain from the operation or that the
violation was intentional.14
9. Next, California Speedway claims that ``[a]t all times,
the Speedway operated the equipment in a good faith
attempt to comply with Part 15 rules.''15 It argues that
the equipment was recommended to it as providing enhanced
public address features which it was interested in
providing and that when it acquired the equipment ``it
believed that equipment to be compliant with FCC
equipment rules for use on an unlicensed basis on FM
frequencies including those with public address
systems.''16 California Speedway states that when it
originally purchased the equipment the manufacturer
advised it to turn down the unit's output control if it
received any complaints of interference during use of the
equipment.17 California Speedway also states that it
selected 104.7 MHz because the closest FM radio station
operating on that frequency was 70 miles away and thus it
believed that that station was beyond the range of
possible interference.18 Finally, California Speedway
argues that it has a history of overall compliance with
the Commission's rules.
DISCUSSION
10. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,19 Section 1.80
of the Rules,20 and the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.21 In examining
California Speedway's response, Section 503(b) of the Act
requires that the Commission take into account the
nature, circumstances, extent and gravity of the
violation and, with respect to the violation, the degree
of culpability, any history of prior offenses, ability to
pay, and other such matters as justice may require.22
11. We reject California Speedway's argument that the
evidence does not support a finding of unlicensed
operation. Section 301 of the Act prohibits ``operation
of 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 provisions of the Act.''23 Section
15.1(a) of the Rules, 24 provides that Part 15 of the
Rules 25 sets out the regulations under which an
intentional radiator (e.g., a low power FM radio
transmitter), may be operated without an individual
license. Section 15.1(b) of the Rules provides that
``operation of an intentional ... radiator that is not in
accordance with the regulations in this part must be
licensed pursuant to the provisions of [S]ection 301 of
the Communications Act of 1934.''26 Thus, by the clear
wording of this rule, in order to be exempt from Section
301's license requirement, an intentional radiator such
as a low power FM radio transmitter must be operated in
accordance with Part 15. Otherwise, the operation
requires a license.
12. Pursuant to Section 15.239(b) of the Rules, non-
licensed low power operation in the FM Band (88-108 MHz)
is permitted only if the field strength of the
transmissions does ``not exceed 250 microvolts/meter
(``µV/m'') at three meters.''27 The investigation
conducted by the Los Angeles Office found the station's
field strength to measure 63,500 µV/m when extrapolated
to three meters. Thus, the measured field strength of
California Speedway's operation exceeded the permissible
Part 15 level for a non-licensed low power FM operation
(250 µV/m at three meters) by 254 times. Therefore,
California Speedway's operation of the transmitter was
not ``in accordance with the regulation'' in Part 15. As
a result, under Section 15.1(b) of the Rules, California
Speedway's radio operation required a license. Since
California Speedway had no license to operate at 104.7
MHz with this field strength, its operation violated
Section 301 of the Act. California Speedway's claim that
it intended to operate the station under Part 15 is
irrelevant since the standard articulated in Section 15.1
turns on whether the transmitter is, in fact, operated in
accordance with Part 15; not whether California Speedway
intended to operate the radio station under Part 15.
Accordingly, we conclude that California Speedway
willfully violated Section 301 of the Act when it engaged
in unlicensed operation of a radio station on frequency
104.7 MHz.28
13. We conclude that a forfeiture in the amount of $8,000
is warranted in light of California Speedway's history of
overall compliance with the Commission's rules.29 We
disagree with California Speedway's argument that other
factors warrant a cancellation or further reduction of
the forfeiture. In particular, we reject California
Speedway's argument that it acted in good faith. To the
contrary, there is no evidence that California Speedway
took steps to ensure that its radio operation was within
the parameters imposed by Part 15. For example,
California Speedway has not demonstrated that it tested
the equipment or monitored the field strength to ensure
that the operation did not exceed the Part 15 emission
limits.30 We are particularly concerned that California
Speedway failed to take these steps even after receiving
notice in November 2001 from the Los Angeles Office
regarding the unlicensed operation. Further, the
existence of this Notice coupled with the fact that
California Speedway's Director of Operations was orally
advised of the consequence of unlicensed operation prior
to the March 24, 2002 investigation renders California
Speedway's suggestion that it did not have notice
regarding the operation of its equipment without merit.
14. Additionally, California Speedway's claim that the
forfeiture should be reduced because the violation was
minor is not supported by the facts. We do not believe
that a non-licensed low power FM operation that exceeds
the permissible level for such operation by more than 254
times is minor. Further, the absence of evidence of
substantial harm to any third party, or that the
violation was egregious, continuing or repeated, or that
California Speedway derived no substantial gain from the
operation are not relevant factors for reducing the
forfeiture. These factors are used for upward
adjustments to the base forfeiture amounts specified in
Section 1.80 of the Rules.31 The forfeiture at hand was
issued to California Speedway for the base amount of
$10,000 as specified by Section 1.80 for operation
without an instrument of authorization (i.e., unlicensed
operation). None of the upward adjustment factors were
used in the determining the forfeiture issued to
California Speedway. Thus, California Speedway's claim
that the absence of these factors should result in a
reduction of the forfeiture is misplaced.
15. Based on the facts of this case, we conclude that
neither cancellation nor further reduction of the
forfeiture is warranted. Accordingly, we find California
Speedway is liable in the amount of $8,000 for unlicensed
operation of a radio station in violation of Section 301
of the Act.
ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,32 California Speedway IS LIABLE
FOR A MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for unlicensed operation of a radio
station in willful violation of Section 301 of the Act.
17. Payment of the forfeiture shall be made in the manner
provided in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to
the Department of Justice for collection pursuant to
Section 504(a) of the Act.33 Payment may be made by
mailing a check or similar instrument, payable to the
order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200232900002 and FRN 0006-0339-
97. Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.34
18. IT IS FURTHER ORDERED that, a copy of this Order be
sent by Certified Mail - Return Receipt Requested - to
California Speedway, 9300 Cherry Avenue, Fontana, CA
92335 and to its counsel, E. Ashton Johnston, Piper
Budnick, LLP, 1200 19th Street, NW, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 California Speedway, NAL/Acct. No. 20023290002 (Enf. Bur., Los
Angeles Office, May 30, 2002).
3 California Speedway's pleading is captioned as a ``Petition for
Reconsideration.'' Since a Notice of Apparent Liability is a
proposed action, there is no basis upon which to file a petition
for reconsideration. Accordingly, we will treat California
Speedway's pleading as a response to the NAL. See 47 C.F.R. §
1.80(f)(3).
4 California Speedway holds a license to operate on several
frequencies in the 461-466 MHz band under call sign WPJX911.
5 Letter from Catherine Deaton, Acting District Director, Los
Angeles Office to Craig Hatch, California Speedway dated November
14, 2001.
6 47 C.F.R. §§ 15.209(a) and 15.239(b).
7 Response of California Speedway, 1, 2 (July 1, 2002 )
(``Response'').
8 Id., at 5-7.
9 Id., at 6.
10 Id.
11 Id., at 5.
12 Id., at 7-10.
13 Id.
14 Id.
15 Id., at 3.
16 Id.
17 Id.
18 Id.
19 47 U.S.C. § 503(b).
20 47 C.F.R. § 1.80.
21 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
22 47 U.S.C. § 503(b)(2)(D).
23 47 U.S.C. § 301.
24 47 C.F.R. § 15.1(a).
25 47 C.F.R. Part 15.
26 47 C.F.R. § 15.1(b) (emphasis added).
27 47 C.F.R. § 15.239(b).
28 The term ``willful,'' as used in Section 503(b) of the Act,
does not require a finding that the rule violation was
intentional or that the violator was aware that it was committing
a rule violation. Rather, the term ``willful'' simply requires
that the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's rules.
Section 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).
29 See Liability of Donald W. Bishop Overland Park, Kansas, 8 FCC
Rcd 2847 (1993).
30 Indeed, California Speedway's claim that it cannot verify the
violation also suggests that California Speedway made no effort
to monitor its operations even after being placed on notice by
the Los Angeles Office of the possible unlicensed operation. By
way of comparison, in Networx Corporation, 17 FCC Rcd 10,572 (EB
2002), cited by California Speedway as support for its argument
that the forfeiture should be reduced or cancelled, the company,
which had just installed the station, had taken measurements and
made adjustments in an effort to assure compliance with the rule
a few days prior to the agent's inspection and discovery of the
violation.
31 See 47 C.F.R. § 1.80(b)(4) Note to Paragraph (b)(4).
32 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
33 47 U.S.C. § 504(a).
34 See 47 C.F.R. § 1.1914.