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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Jack Gerritsen ) File No. EB-03-LA-286
6217 ½ Palm Avenue ) NAL/Acct. No.
200432900004
Bell, California 90201 ) FRN 0005240072
)
FORFEITURE ORDER
Adopted: October 1, 2004 Released: October 5,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to Jack Gerritsen (``Gerritsen'') for
willful and repeated violations of Section 301 of the
Communications Act of 1934, as amended (``Act'').1 The
noted violations involve Gerritsen operating a radio
station in the Amateur Radio Services without
authorization from the Federal Communications
Commission (``Commission'').
2. On June 15, 2004, the Commission's Los Angeles,
California Field Office (``Los Angeles Office'') issued
a Notice of Apparent Liability for Forfeiture ("NAL")
to Gerritsen in the amount of ten thousand dollars
($10,000) for apparently willfully and repeatedly
violating Section 301 of the Act by operating a radio
station in the Amateur Radio Service without
authorization from the Commission.2 Gerritsen filed a
response to the NAL on July 13, 2004.
II. BACKGROUND
3. On December 28, 1999, Jack Gerritsen was arrested by
the California Highway Patrol and charged with
violating sections of the California Penal Code that
prohibit intercepting, obstructing and/or interfering
with police radio communications.3 Gerritsen was
convicted of interfering with police radio
communications on June 6, 2000.4 Gerritsen's
subsequent probation included that he not possess any
radio transmitting devices and not interfere with
police or FCC activity.5 On November 14, 2001, the
Commission's Wireless Telecommunications Bureau set
aside, on its own motion, amateur radio station license
KG6IRO, which was granted to Gerritsen on November 7,
2001.6 Gerritsen was notified that the action was
taken because of complaints about the operation of
Gerritsen's station and because of questions regarding
his qualification to be a licensee in light of his 1999
arrest and 2000 conviction for radio interference to
police communications.7 Gerritsen was warned that ``you
have no authority to operate radio transmitting
equipment, and such operation would be a violation of
Section 301 of the Communications Act of 1934, as
amended, 47 U.S.C. Section 301, subjecting you to
monetary penalties and imprisonment.''8
4. On December 9, 2001, the Bell California Police
Department notified the Commission's Los Angeles Office
that they had received complaints against Gerritsen for
radio transmissions. On December 28, 2001, the Acting
District Director of the Los Angeles Office issued a
warning letter to Gerritsen for unlicensed operation
and advised him to immediately discontinue operating
his unlicensed radio station.9 Gerritsen replied on
January 2, 2002, asserting that the Commission's set-
aside of his amateur license was improper.10 On
January 29, 2002, Officers from the Bell Police
Department and the California Highway Patrol arrested
Gerritsen for violation of his probation.11 On May 7,
2002, Gerritsen was found to have violated his
probation and sentenced.12
5. Soon after Gerritsen's release from prison on July 28,
2003, the Commission's Los Angeles Office began
receiving complaints of unauthorized and unlicensed
radio transmissions over local amateur, business and
public safety radio repeater systems.13 The complaints
alleged that the person making the transmissions
identified himself as ``KG6IRO.''14 Based upon these
complaints, an agent from the Los Angeles Office
conducted an investigation. On November 6, 2003, using
mobile direction finding techniques, the agent
identified transmissions over radio frequencies 146.012
MHz, 146.325 MHz and 146.4868 MHz emanating from 6217 ½
Palm Avenue, Bell, California, which was known to the
agent as Gerritsen's residence. The agent observed
Gerritsen sitting in his driveway holding a small
portable radio transceiver. The agent positively
identified Gerritsen as the operator of the radio
transmitting on the frequencies 146.012 MHz, 146.325
MHz and 146.4868 MHz.
6. On November 7, 2003, agents from the Los Angeles
Office, using mobile radio direction finding
techniques, identified transmissions over radio
frequencies 146.012 MHz and 146.610 MHz emanating from
Gerritsen's residence. Gerritsen was once again
positively identified and observed by the agents in his
driveway holding a small portable two-way radio.
Agents interviewed Gerritsen and he admitted to
transmitting on various Amateur radio frequencies as
well as various Business radio frequencies. Gerritsen
could not produce a valid station license for either
the Amateur radio service or any other radio service.
7. On December 5, 2003, the District Director of the Los
Angeles Field Office issued a Notice of Unlicensed
Radio Operation (``Notice'') to Gerritsen.15 Gerritsen
responded to the Notice on December 9, 2003, stating
that the Los Angeles Office should ``cease and desist
in any more inforcement [sic] efforts until such time
as a hearing is held and a decision against me has been
determined and an additional 15 days after any such
adverse decision, as provided by F.C.C. rules and
regulations . . . .''16
8. On February 9, 2004, acting on numerous additional
complaints filed with the Commission since the December
5, 2003 Notice, agents of the Los Angeles Office, using
mobile radio direction finding techniques, identified
transmissions over radio frequency 147.690 MHz
emanating from Gerritsen's residence. The agents left
a message on Gerritsen's telephone answering machine.
In a subsequent telephone interview, the agents
requested an inspection of Gerritsen's radio equipment
located at his residence. Gerritsen refused the
inspection. The Commission continues to receive
complaints of unauthorized operation by an operator
identifying as KG6IRO.
9. On June 15, 2004, the Los Angeles Office issued the NAL
to Gerritsen for violation of Section 301 of the Act.
On July 13, 2004, Gerritsen submitted a response to the
NAL. In that response, Gerritsen argues that he has a
valid amateur license that permits him to operate on
all of the radio frequencies detailed in the NAL; that
the NAL does not show that his conviction for
intentional interference is under appeal; that the
``set-aside'' of amateur license KG6IRO was unfounded;
that the ``set-aside'' does not prohibit him from
transmitting on the amateur radio bands given his valid
amateur license; and that any possible suspension of
his license is also pending a hearing before an
Administrative Law Judge, making the NAL moot until the
suspension occurs.
III. DISCUSSION
10. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),17
Section 1.80 of the Rules,18 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement'').19 In
examining Gerritsen'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 violator, the degree
of culpability, any history of prior offenses, ability
to pay, and other such matters as justice may
require.20
11. Section 301 of the Act requires 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. On November 6, 2003, November
7, 2003, and February 9, 2004, Gerritsen operated radio
transmitting equipment at 6217 ½ Palm Avenue, Bell,
California, on the frequencies 146.012 MHz, 146.325
MHz, 146.4868 MHz, 146.610 MHz and 147.690 MHz without
the required Commission authorization. Gerritsen does
not dispute that he engaged in transmissions using the
amateur frequencies.
12. Gerritsen argues that the ``alleged set-aside'' of his
amateur license, KG6IRO, is unfounded and is only a
claim made by Commission personnel. Gerritsen contends
that any ``set-aside'' does not prohibit him from using
his amateur license to transmit on amateur bands. This
is incorrect. Commission records show that Gerritsen
was granted amateur radio station license KG6IRO on
November 7, 2001, and that the grant of the license was
set aside, pursuant to Section 1.113(a) of the
Commission's Rules21 on November 14, 2001. Section
1.113(a) states that within 30 days of public notice of
any action taken pursuant to delegated authority, ``the
person, panel or board taking the action may modify or
set it aside on its own motion.''22 Gerritsen was
notified of this action by letter dated November 21,
2001 which also informed Gerritsen that ``[y]our
application reverts to a pending status.''23 As the
Commission has explained, it is able to ``set aside''
an action within the meaning of Section 1.113 ``when it
deliberately changes course by vacating a decision that
it later determines to have been ill-advised.''24 As
Commission correspondence to Gerritsen shows, after his
amateur license was ``set aside,'' his application for
an amateur license returned to pending status.
Consequently, no license exists authorizing Gerritsen
to use the amateur frequencies he was found to be using
in the NAL.
13. Gerritsen argues that he has preserved his license by
filing a letter with the Commission, pursuant to
Section 1.85 of the Rules,25 and asking for a hearing
concerning his license. Gerritsen further contends
that, in correspondence from the Commission, he has
been told that he will have a hearing in front of an
Administrative Law Judge. We find that Gerritsen has
misinterpreted both Section 1.85 and the correspondence
he has received from the Commission. Section 1.85
details when the Commission may suspend an operator
license.26 As Gerritsen has no license, only a pending
application, there is no license for the Commission to
suspend and Section 1.85 is inapplicable.27 The
correspondence Gerritsen received from the Bureau
informed Gerritsen that his amateur license had been
set aside and that his ``application will be designated
for a hearing before an Administrative Law Judge in
order to determine if [he is] qualified to obtain a
Commission license.''28 Neither Section 1.85 nor the
correspondence Gerritsen received from the Commission
granted him an amateur license or any authorization to
use the amateur frequencies.29
14. We have examined Gerritsen's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement as
well. Based on the findings of the NAL and Gerritsen's
response, we find that Gerritsen's violation of Section
301 of the Act was willful 30 and repeated.31
Considering the entire record and the statutory factors
listed above, we find that neither cancellation nor
reduction of the proposed $10,000 forfeiture is
warranted.
IV. ORDERING CLAUSES
15. 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 Jack Gerritsen IS LIABLE FOR
A MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully and repeatedly
violating Section 301 of the Act.
16. Payment of the forfeiture shall be made in the manner
provided for 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 of
the forfeiture must be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. The payment should note
NAL/Acct. No. 200432900004 and FRN 0005240072. Payment
by check or money order may be mailed to Forfeiture
Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. Payment by overnight mail may be
sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank
Bank One, and account number 1165259. 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
17. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and
by First Class Mail to Jack Gerritsen, 6217 ½ Palm
Avenue, Bell, California, 90201.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
147 U.S.C. § 301.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432900004 (Enf. Bur., Los Angeles Office, released June 15,
2004).
3FCC Investigation Leads to Arrest of Suspect Interfering with
Police Frequencies in the Los Angeles Area (2000 WL 6306 (F.C.C.)
Released January 7, 2000) (``FCC Press Release''). According to
the FCC Press Release, ``[s]everal Los Angeles area police
departments and other licensees had filed complaints with the
Commission concerning what was described as intentional
interference on their assigned frequencies. . . . In addition to
the California Penal Code violations, the Commission's
Enforcement Bureau has determined that the suspect's actions were
also in violation of Section 301 of the Communications Act.''
4See Municipal Court of Long Beach Judicial District, County of
Los Angeles, State of California, Case No. 0SE01792: People vs.
Jack Gerritsen, June 6, 2000.
5See Municipal Court of Long Beach Judicial District, County of
Los Angeles, State of California, Case No. 0SE01792: People vs.
Jack Gerritsen, June 6, 2001.
6See November 21, 2001, letter from W. Riley Hollingsworth,
Special Counsel, Enforcement Bureau, Federal Communications
Commission, to Mr. Jack Gerritsen (``November 21, 2001
Enforcement Bureau Letter''). The action was taken pursuant to
Section 1.113(a) of the Rules which states that ``within 30 days
after public notice has been given of any action taken pursuant
to delegated authority, the person, panel, or board taking the
action may modify or set it aside on its own motion.'' 47 C.F.R.
§ 1.113(a).
7November 21, 2001, Enforcement Bureau Letter.
8November 21, 2001, Enforcement Bureau Letter.
9December 28, 2001, letter from Catherine Deaton, Acting District
Director, Los Angeles Office, Enforcement Bureau, Federal
Communications Commission.
10January 2, 2002, letter from Jack Gerritsen to Catherine
Deaton, Acting District Directors, Enforcement Bureau, Federal
Communications Commission.
11See Bell Police Department-Supplemental/Arrest Report 01-6723,
dated January 29, 2002.
12See The Municipal Court of Long Beach Judicial District, County
of Los Angeles, State of California, Case No. 0SE01792: People
vs. Jack Gerritsen, May 7, 2002.
13See e.g., September 19, 2003, Amateur Radio Relay League (ARRL)
Complaint; November 6, 2003 Bell Gardens Police Department Sgt.
Jerry Winfrey's complaint.
14At the time the NAL was issued, the KG6IRO Amateur Radio Call
Sign was listed as ``terminated'' in the Commission's databases.
15December 5, 2003, Notice from Catherine Deaton, District
Director, Los Angeles Office, Enforcement Bureau, Federal
Communications Commission. The Notice warned Gerritsen that
operation of a radio transmitter in the Amateur Radio Service
without a valid authorization violated 47 U.S.C § 301 and
outlined potential penalties for operating an unlicensed station
in violation of 47 U.S.C. § 301, including seizures of equipment,
fines and imprisonment. The Notice requested a reply within
fifteen (15) days.
16December 7, 2003, letter from Jack Gerritsen to Catherine
Deaton, District Director, Federal Communications Commission.
1747 U.S.C. § 503(b).
18C.F.R. § 1.80.
1912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
2047 U.S.C. § 503(b)(2)(D).
2147 C.F.R. § 1.113(a).
2247 C.F.R. § 1.113(a).
23November 21, 2001, Enforcement Bureau Letter.
24In the Matter of Stale or Moot Docketed Proceedings, 19 FCC Rcd
2527, 2531 (2004).
2547 C.F.R. § 1.85.
26See, e.g., In the Matter of Leslie D. Brewer, 16 FCC Rcd 5671
(2001).
27Gerritsen also argues that 1.80(c) requires that no penalty be
imposed against him if the violation occurred more than one year
prior to the date on which the appropriate notice is given.
Gerritsen contends the actions that his June 6, 2000 conviction
was based upon occurred in 1999, and that the ``set-aside'' of
his amateur license occurred in 2001, more than one year after
his ``alleged violation of law.'' Section 1.80(c) concerns
forfeiture penalties, not actions taken under Section 1.113, and,
therefore, is not applicable here.
28August 14, 2003 Letter from W. Riley Hollingsworth, Special
Counsel, Enforcement Bureau to Jack Gerritsen. The letter also
warned Gerritsen that his repeated attempts to contact the Office
of Administrative Law Judges were in violation of the
Commission's rules against Ex Parte Communications set forth in
Sections 1.1200 - 1.1216 of the Commission's Rules, 47 C.F.R. §§
1.1200 - 1.1216. See also October 15, 2003 Letter from W. Riley
Hollingsworth, Special Counsel, Enforcement Bureau to Jack
Gerritsen (notifying Gerritsen that his GMRS License WPYR527 was
set aside pursuant to Section 1.113, and that his application has
reverted to a pending status and will be made part of a
forthcoming hearing to determine if Gerritsen is qualified to
hold a Commission license).
29Gerritsen also argues that his June 6, 2000 conviction of
interfering with police radio communications is currently under
appeal. We note that, as of this date, we have received no
information indicating that the conviction has been reversed.
30Section 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,'
... 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).
31As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
3247 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
3347 U.S.C. § 504(a).
34See 47 C.F.R. § 1.1914.