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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number: EB-04-SF-305
)
William Stephen Major NAL/Acct. No. 200532960002
)
Sacramento, California FRN 0013442173
)
)
FORFEITURE ORDER
Adopted: June 27, 2006 Released: June 29, 2006
By the Regional Director, Western Region, 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 William Stephen Major
("Major"), for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). On June 29, 2005, the
Enforcement Bureau's San Francisco Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $10,000 to Major
after determining that Major willfully and repeatedly operated an
unlicensed radio transmitter on 96.5 MHz in Sacramento, California. In
this Order, we consider arguments raised by 916 Radio, an
organization, which Major is president of, claiming responsibility for
the violations, concerning Major's liability, 916 Radio's authority to
operate the station, and its inability to pay the forfeiture.
II. BACKGROUND
2. On December 21, 2004, the Commission's San Francisco Office received
information concerning an unauthorized broadcast station operating on
96.5 MHz in Sacramento, California. A review of the Commission's
databases revealed no authorization for KNOZ to operate on 96.5 MHz in
Sacramento, California.
3. On January 5, 2005, agents from the San Francisco Office while in
Sacramento, California observed a station on 96.5 MHz identifying as
"KNOZ LP 96.5." The agents used mobile direction finding techniques to
locate the broadcast transmissions to commercial office space at 2207
16^th Street, Sacramento, California. The office entrance door had
signage which read "MAJORSCREEN WORKS THE HOME OF KNOZ 96.5
FM...HTTP://WWW.THE916COM..." The agents took field strength
measurements and determined that the signals being broadcast exceeded
the limits for operation under Part 15 of the Commissions Rules
("Rules") and therefore required a license. The agents knocked on the
office door and were granted entry by an individual who subsequently
identified himself as William Major. Major offered his business card
which indicated he was associated with "KNOZ 96.5 FM (916) Radio." In
response to the agents' questions regarding the operation of the
station, Major assumed responsibility for the station operation. Major
could not produce a station license. Major stated that he would take
the station off-the-air since he wanted to be in compliance so that he
could apply for a low power FM station license. Major stated he had
completed all associated paperwork and had been in contact with the
Commission about the steps necessary to obtain a license. The agents
served a Notice of Unlicensed Operation ("Notice") on Major. The
Notice, which Major signed to acknowledge receipt, stated that the
unlicensed operation of the radio station must be discontinued
immediately, that operation of radio transmitting equipment without a
valid radio station authorization constituted a violation of Section
301 of the Act, and that failure to stop the operation could result in
various penalties, including forfeiture of the equipment. Monitoring
by the San Francisco agents revealed that the signal on 96.5 MHz
temporarily went off the air but resumed later in the afternoon on
January 5, 2005.
4. On January 12, 2005, an agent from the San Francisco Office again
monitored and used mobile direction finding techniques to locate a
broadcast transmission on 96.5 MHz emanating from the commercial
office space at 2207 16^th Street, Sacramento, California. The
transmission was identifying as "KNOZ LP 96.5." The agent made field
strength measurements and determined that the signals being broadcast
were essentially unchanged from the previous measurement. The
measurements indicated that the station still exceeded the limits for
operation under Part 15 of the Rules, and, therefore, still required a
license. When the agent knocked on the office door, a male voice
denied entry and the request for inspection because the owner was not
present. The agent then left another Notice of Unlicensed Operation
("Notice") at the office door. This Notice also stated that the
unlicensed operation of the radio station must be discontinued
immediately, that operation of radio transmitting equipment without a
valid radio station authorization constituted a violation of Section
301, and that failure to stop the operation could result in various
penalties, including forfeiture of the equipment. This Notice also
informed Major that he was in violation of Section 303(n) of the Act
for failing to allow the San Francisco agent to inspect the radio
station. As the agent departed the area, he heard Major's voice on
96.5 MHz announcing that the FCC was at the door and was trying to
shut the station down.
5. On January 14, 2005, February 3, 2005, and March 15, 2005, agents from
the San Francisco Office again monitored and used mobile direction
finding techniques to locate broadcast transmissions on 96.5 MHz
emanating from the commercial office space at 2207 16^th Street,
Sacramento, California. During each observation, the transmission was
identifying as "KNOZ LP 96.5." The agents made field strength
measurements and determined that the signals being broadcast were
essentially unchanged from the previous measurements. The measurements
indicated that the station still exceeded the limits for operation
under Part 15 of the Rules, and, therefore, still required a license.
6. On June 29, 2005, the Enforcement Bureau's San Francisco Office issued
a NAL in the amount of $10,000 to Major. In the NAL, the San Francisco
Office found that Major apparently willfully and repeatedly violated
Section 301 of the Act by operating an unlicensed radio transmitter
on 96.5 MHz in Sacramento, California. 916 Radio filed a response on
behalf of Major on July 28, 2005 ("Response"). In its Response, 916
Radio essentially makes three claims: that it, and not Major, a
volunteer employee, is responsible for the operation of the station;
that it believed it had authority to operate until early January 2005
because it intended to file a low power FM application and was in
compliance with the low power FM rules; and that the Commission's
licensing scheme for low power FM radio stations is "egregiously
unconstitutional." 916 Radio also states that it does not have the
ability to pay the forfeiture and requests that the forfeiture be
reduced or cancelled.
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the 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.
8. 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. Neither Major nor 916
Radio claim to have a Commission license to operate an FM broadcast
station.
9. In the Response, 916 Radio argues that it, and not Major, is
responsible for the unlicensed operation described in the NAL, and
that Major is a volunteer employee of 916 Radio. Major, and not 916
Radio, is the subject of this forfeiture proceeding. During the
inspection of the station on January 5, 2005, Major indicated to the
San Francisco agents that he was responsible for the station. Major
also demonstrated control of the station by taking the station off the
air after the agents left that day, although monitoring by the agents
revealed that the station resumed broadcasting later that afternoon.
We have previously held that because Section 301 of the Act provides
that "no person shall use or operate" radio transmission equipment,
liability for unlicensed operation may be assigned to any individual
taking part in the operation of the unlicensed station, regardless of
who else may be responsible for the operation. Therefore, 916 Radio's
claim of responsibility does not shield Major from liability. Further,
to the extent that 916 Radio is speaking on behalf of Major, we note
that neither it nor Major supply any evidence to refute the facts
described in the NAL.
10. 916 Radio also argues that it believed it had authority to operate
until early January 2005 because it intended to file a low power FM
application and was in compliance with the low power FM rules. 916
Radio states that it filed an application for a low power FM license
and request for waiver of "any and all [] rules that would prohibit
the processing of said license" with the Commission on March 17, 2005,
but never received a response. The last window for filing applications
for low power FM licenses in California closed on June 8, 2000.
Section 73.817 of the Rules specifically states that "[a]pplications
submitted after the deadline will be dismissed with prejudice as
untimely." Neither Major nor 916 Radio provide any evidence showing
that the application and request for waiver, filed almost five years
after the last relevant low power FM filing window closed, were ever
received by the Commission. 916 Radio further states, in both the
Response and the purported March 17, 2005 waiver request, that it was
told by Commission staff that it could continue to operate its station
as long as it complied with all FCC Rules while waiting for a filing
window to open to apply for a license. The Commission has consistently
held that applicants are responsible for compliance with the
Commission's Rules and that they should not rely on informal oral
opinions from Commission staff. Additionally, Major received two
Notices, as detailed above, warning him that his operation on 96.5 MHz
violated Section 301 of the Act, and 916 Radio acknowledges that the
operations on 96.5 MHz since late January 2005 have been "outside the
FCC's interpretations of FCC Rules and Federal Law." Consequently, we
find that none of 916 Radio's efforts to obtain a low power FM license
negate nor warrant reduction of Major's liability for operating a
radio station without a Commission license.
11. 916 Radio also alleges that the Commission's licensing scheme for low
power FM radio stations is "egregiously unconstitutional." We note
that to the extent the constitutionality of the low power FM licensing
scheme has been challenged, it has been found to be constitutional.
12. 916 Radio also states that it is a non-profit corporation with no
ability to pay the proposed forfeiture. Again, we note that this
forfeiture is proposed against Major, not 916 Radio. In the NAL, the
San Francisco Office instructed Major, if he sought cancellation or
reduction of the forfeiture, to supply:
(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.
Major submitted no documentation that reflects his current financial
status. Therefore, he has provided us with no basis to support
cancellation or reduction of the forfeiture based on his inability to pay.
13. Finally, we note that neither Major nor 916 Radio have made any effort
since the issuance of the NAL to cease operations on 96.5 MHz in
Sacramento, California. Despite 916 Radio's statement that it
"recogniz[es] it must leave the airwaves until properly licensed,"
further investigation by the San Francisco Office reveals that "KNOZ"
continues to broadcast on 96.5 MHz in Sacramento.
14. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Major willfully
and repeatedly violated Section 301 of the Act. Considering the entire
record and the factors listed above, we find that neither reduction
nor cancellation of the proposed $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, William Stephen Major
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission.\001 The payment must include the NAL/Acct.
No. and FRN No. referenced above.\001 Payment by\001check or money
order may be mailed to Federal Communications Commission, P.O.
Box\001358340,\001Pittsburgh, PA 15251-8340.\001 Payment by overnight
mail may be sent to\001Mellon Bank\001/LB\001358340,\001500 Ross
Street, Room 1540670, Pittsburgh, PA 15251.\001\001 Payment by wire
transfer may be made to ABA Number\001043000261, receiving
bank\001Mellon Bank, and account number\001911- 6106. Requests for
full payment under an installment plan should be sent to: Associate
Managing Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to William
Stephen Major at his address of record, and his counsel of record,
Stephen C. Sanders, Esquire, and Robert Monterrosa, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 301.
According to Commission records, there is a pending application for a
construction permit for a FM translator, filed by Eastern Sierra
Broadcasting, for operation on 96.5 MHz in Sacramento, California. See
File No. BNPFT-20030317KKK.
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 mV/m at three meters. 47 C.F.R. S 15.239.
On January 5, 2005, the measurements indicated that the signal was 1,894
times greater than the maximum permissible level for a non-licensed Part
15 transmitter.
47 U.S.C. S 301.
The measurements made on January 12, 2005, indicated that the signal was
1,788 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter.
47 U.S.C. S 303(n).
The measurements made on January 14, 2005, indicated that the signal was
1,850 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter. The measurements made on February 3, 2005, indicated
that the signal was 1,614 times greater than the maximum permissible level
and the measurements made on March 15, 2005, indicated that the signal was
1,322 times greater than the maximum permissible level.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532960002
(Enf. Bur., Western Region, San Francisco Office, released June 29, 2005).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301.
916 Radio states that it is a non-profit corporation, incorporated in
California. As part of the Response, 916 Radio includes letters and cards
from supporters, some of which are addressed to both Major and "KNOZ." We
also note that on the low power FM application that 916 Radio attached to
its Response, Major is listed as the president of 916 Radio.
47 U.S.C. S 301.
Jean L. Senatus, Forfeiture Order, DA 05-2376, 2005 WL 2105321 (rel.
September 1, 2005). 916 Radio readily admits that it does not hold a
Commission license and that it is responsible for the transmissions on
96.5 MHz. Therefore, nothing in this current forfeiture proceeding bars us
from taking future enforcement action against 916 Radio if the unlicensed
operation continues.
In response to a Notice of Apparent Liability, the "respondent will be
afforded a reasonable period of time (usually 30 days from the date of the
notice) to show, in writing, why a forfeiture penalty should not be
imposed or should be reduced, or to pay the forfeiture. Any showing as to
why the forfeiture should not be imposed or should be reduced shall
include a detailed factual statement and such documentation and affidavits
as may be pertinent." Section 1.80(f)(3) of the Rules. 47 C.F.R. S
1.80(f)(3).
Public Notice: Low Power FM Filing Window Deadline Extended, 15 FCC Rcd
9533 (2000).
47 C.F.R. S 73.870(b). Waivers will only be granted for "good cause
shown." 47 C.F.R. S 1.3.
We note that 916 Radio, by continuing to operate an unlicensed station,
after receiving warnings from the San Francisco Office, was not in
compliance with the Commission's Rules when it filed the March 17, 2005
waiver request and application. See 47 C.F.R. S 73.854 ("No application
for an LPFM station may be granted unless the applicant certifies, under
penalty of perjury, that neither the applicant, nor any party to the
application, has engaged in any manner including individually or with
persons, groups, organizations or other entities, in the unlicensed
operation of any station in violation of Section 301 of the Communications
Act of 1934, as amended, 47 U.S.C. 301.")
Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).
Response at 11.
47 C.F.R. S 73.801 et seq.
See, e.g., Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir 2003).
NAL at P 13.
See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 P 16 (2003).
Response at 11.
San Francisco agents monitored the station's continued illegal operation
in Sacramento on February 16, 2006, and confirmed their findings by
visiting the station's website: http://www.the916.com (visited June 25,
2006).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1328
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Federal Communications Commission DA 06-1328