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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                             )                                
                                                              
                             )                                
     In the Matter of              File Number: EB-04-SD-163  
                             )                                
     Joni K. Craig               NAL/Acct. No.: 200632940002  
                             )                                
     San Diego, California                   FRN: 0014413157  
                             )                                
                                                              
                             )                                


                                FORFEITURE ORDER

   Adopted: September 27, 2006  Released: September 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 five hundred dollars ($500) to Joni K. Craig ("Craig"),
       for willful and repeated violations of Section 301 of the
       Communications Act of 1934, as amended ("Act"). On December 19, 2005,
       the San Diego Office issued a Notice of Apparent Liability for
       Forfeiture ("NAL") in the amount of $10,000 to Craig after determining
       that Craig apparently willfully and repeatedly operated an unlicensed
       radio transmitter on 106.9 MHz in San Diego, California. In this
       Order, we consider Craig's arguments that she played only a passive
       role in the operation of the unlicensed station, that she took steps
       to shut down the station, and that she is unable to pay the proposed
       forfeiture.

   II. BACKGROUND

    2. On July 26, 2005, agents from the Commission's San Diego Office
       monitored 106.9 MHz in the San Diego area and used mobile direction
       finding techniques to locate broadcast transmissions on 106.9 MHz
       emanating from a converted garage behind Craig's residence in the City
       Heights area of San Diego. The agents took field strength measurements
       and determined that the signals being broadcast exceeded the limits
       for operation under Part 15 of the Commission's Rules ("Rules") and
       therefore required a license. According to FCC records, neither Craig,
       nor any other person or entity, holds an authorization to broadcast on
       that frequency from that location.

    3. San Diego agents had previously interviewed Craig about the unlicensed
       radio station in her garage. On October 4, 2004, the agents used
       mobile direction finding techniques to locate broadcast transmissions
       on 106.9 MHz emanating from Craig's residence. The agents noted that
       the source of the radio signal was an antenna atop a detached garage
       in the rear of the residence. The agents took field strength
       measurements and determined that the signals being broadcast exceeded
       the limits for operation under Part 15 and therefore required a
       license. When agents attempted to inspect the radio station in her
       garage, Craig refused to allow the inspection. She claimed to have no
       knowledge of a radio station and that some other people were working
       on a project in her garage. The agents departed after orally warning
       Craig not to operate an unlicensed radio station. On October 5, 2004,
       the San Diego Office sent Craig a detailed Notice of Unlicensed
       Operation, which gave Craig an opportunity to reply. No reply was
       received.

    4. On November 10, 2004, San Diego agents monitored 106.9 MHz in the San
       Diego, California area and used mobile direction finding techniques to
       locate broadcast transmissions on 106.9 MHz emanating from Craig's
       garage. The agents took field strength measurements and determined
       that the signals being broadcast exceeded the limits for operation
       under Part 15 of the Rules and therefore required a license. The
       agents then approached the residence and identified themselves to
       Craig. The agents again requested an inspection. Craig agreed to the
       inspection, unlocked the garage, and gave the agents access to its
       contents, which included a radio transmitter, a computer and an
       internet modem, all in operation. The electricity for the operation
       came off the main power line to the garage. The current then ran from
       the garage to Craig's residence, via underground cables. The radio
       station's power switch was visible and easily accessible. The agents
       requested that Craig shut down the unlicensed radio station, but she
       again refused, explaining that she could shut down the station but
       would not as it belonged to someone else. She told the agents that she
       would have the people who owned the equipment shut down the
       transmitter. When she was asked who the owner of the radio equipment
       was, she refused to answer. The agents left the premises after
       verbally warning Craig again not to continue to operate an unlicensed
       radio station. Despite the warnings, subsequent monitoring by San
       Diego agents, on November 16, 2004, and November 19, 2004, revealed
       that the station continued to operate from Craig's garage.

    5. After finding that the station was still active on July 26, 2005, San
       Diego agents, on August 2, 2005, hand-delivered another Notice of
       Unlicensed Operation to Craig, which again gave Craig an opportunity
       to reply. The agents advised Craig that if the unlicensed radio
       operation did not cease immediately, she could receive a NAL and may
       be found liable for forfeiture in the amount of ten thousand dollars.
       A copy of the Notice sent via Certified Mail and regular mail was
       posted later that day as well. No reply from Craig was received.

    6. On August 3, 2005, San Diego agents monitored 106.9 MHz in the San
       Diego, California area and found no station active. On August 26,
       2005, San Diego agents monitored 106.9 MHz in the San Diego,
       California area and used mobile direction finding techniques to locate
       broadcast transmissions on 106.9 MHz emanating from Craig's garage.
       The agents took field strength measurements and determined that the
       signals being broadcast exceeded the limits for operation under Part
       15 of the Rules and therefore required a license. No inspection of the
       station was attempted.

    7. On December 19, 2005, the San Diego Office issued a NAL in the amount
       of $10,000 to Craig. Craig filed a response to the NAL on January 19,
       2006 ("Response"). In the NAL, the San Diego Office found that Craig
       apparently willfully and repeatedly violated Section 301 of the Act by
       operating an unlicensed radio transmitter on 106.9 MHz in San Diego,
       California. In her Response, Craig argues that she played only a
       passive role in the operation of the station, that she took steps to
       shut the station down after receiving the July 26, 2005, Notice of
       Unlicensed Operation from the San Diego Office, and that the station
       no longer broadcasts from her residence. She also argues that she is
       unable to pay the proposed forfeiture and, to support this claim,
       supplies three years of tax records. Finally, if a forfeiture is
       imposed, Craig asks for a personal interview and/or a hearing with a
       Commission official at the nearest field office to discuss the NAL.

   III.  DISCUSSION

    8. 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, 12 FCC Rcd
       17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
       Statement"). In examining Craig'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.

    9. Section 301 of the Act requires that no person shall use or operate
       any apparatus for the transmission of energy of communications or
       signals by radio within the United States except under and in
       accordance with the Act and with a license. Section 3(33) of the Act
       defines "communications by radio" as "the transmission by radio of
       writing, signs, signals, pictures, and sounds of all kinds, including
       all instrumentalities, facilities, apparatus, and services (among
       other thing the receipt, forwarding, and delivery of communications)
       incidental to such transmission." On October 4, 2004, November 10,
       2004, November 16, 2004, November 19, 2004, July 26, 2005, August 2,
       2005 and August 26, 2005, Craig provided services and facilities
       incidental to the transmission of communications by radio occurring on
       106.9 MHz in San Diego, California.

   10. In her Response, Craig argues that her participation in the unlicensed
       broadcast station was merely a passive role, that the station belonged
       to other individuals, and that she did not feel it was her place to
       shut it down. We find that these facts do not make Craig any less of a
       participant in the operation of the station. As the San Diego Office
       determined in the NAL, Craig provided the garage and real property on
       which the operation took place, and provided the electric current used
       to power the radio station. Consequently, we find that she
       participated in the operation of the unlicensed station. Craig also
       acknowledged to San Diego agents that she was aware that the station
       was operating on her property, apparently, with her permission. While
       Craig admitted that she could turn the station off, evidencing her
       control over the station, she refused to do so. Craig provided access
       to the garage that housed the station, also demonstrating her control
       over the station. The Commission has said in the past that "'control'
       will be defined to include . . . any means of actual working control
       over the operation of the [station] in whatever manner exercised."
       Additionally, 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. Taken
       together, we find that Craig's actions amounted to willful and
       repeated violations of Section 301 of the Act.

   11. Craig also argues that she made efforts to have the station shut down
       after receiving the July 26, 2005, Notice of Unlicensed Operation from
       the San Diego Office and that the station no longer operates from her
       residence. Whatever efforts Craig made to shut down the station in
       July 2005, were apparently unsuccessful given that the San Diego
       Office found the station to be in operation on August 2, 2005 and
       August 26, 2005, as detailed in the NAL. Additionally, the Commission
       expects violators to implement corrective action to bring past
       violations into compliance, and that, therefore, such actions do not
       nullify or mitigate past violations. Therefore, we find no merit to
       this argument.

   12. Further, Craig asks that the proposed forfeiture amount be reduced or
       cancelled because she is unable to pay the forfeiture amount. She also
       supplies three years of tax records to support his claim that he is
       unable to pay the proposed forfeiture amount. Having reviewed Craig's
       response along with the supporting financial documentation we
       conclude, consistent with precedent, that a reduction of the proposed
       forfeiture to $500 is appropriate.

   13. Finally, Craig states that if a forfeiture is assessed against her,
       she asks for an interview or hearing with a Commission official at the
       nearest field office. Nothing in the Act requires the Commission to
       provide an unlicensed operator the opportunity for a hearing prior to
       imposition of a forfeiture. Rather, under Section 503(b)(4) of the
       Act, the Commission must issue a written notice of apparent liability
       which specifies each provision of the Act and the rules alleged to be
       violated, the facts upon which the charge against the named violator
       is based, and the date upon which the alleged violation occurred. The
       NAL issued by the San Diego Office fully complied with these
       requirements.

   14. We have examined Craig's 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 Craig willfully
       and repeatedly violated Section 301 of the Act. Considering the entire
       record and the factors listed above, we find that reduction of the
       proposed forfeiture is warranted, given Craig's demonstrated inability
       to pay. Accordingly, the forfeiture amount is reduced from ten
       thousand dollars ($10,000) to five hundred dollars ($500).

   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, Joni K. Craig IS
       LIABLE FOR A MONETARY FORFEITURE in the amount of $500 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 Joni K.
       Craig at her address of record, and Jeremy D. Warren, her counsel of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   47 U.S.C. S 301.

   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. The measurements
   made on July 26, 2005, indicated that the signal was 1,916 times greater
   than the maximum permissible level for a non-licensed Part 15 transmitter.

   On October 4, 2004, the measurements indicated that the signal was 1,986
   times greater than the maximum permissible level for non-licensed Part 15
   transmitters.

   The San Diego Office received a receipt from the U.S. Postal Service
   indicating that the Notice of Unlicensed Operation had been received.

   The measurements made on November 10, 2004, indicated that the signal was
   2,422 times greater than the maximum permissible level for a non-licensed
   Part 15 transmitter.

   The measurements made on November 16, 2004, indicated that the signal was
   5,473 times greater than the maximum permissible level for a non-licensed
   Part 15 transmitter. The measurements made on November 19, 2004, indicated
   that the signal was 5,357 times greater than the maximum permissible level
   for a non-licensed Part 15 transmitter.

   Prior to the delivery on August 2, 2005, of the oral and written warnings,
   the agents took field strength measurements and determined that the signal
   being broadcast was 2,167 times greater than the maximum permissible level
   for a non-licensed Part 15 transmitter.

   The San Diego Office received a receipt from the U.S. Postal Service
   indicating that the Notice of Unlicensed Operation had been received.

   The measurements made on August 26, 2005, indicated that the signal was
   4,571 times greater than the maximum permissible level for a non-licensed
   Part 15 transmitter.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632940002
   (Enf. Bur., Western Region, San Diego Office, released December 19, 2005).

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   47 U.S.C. S 503(b)(2)(D).

   47 U.S.C. S 153(33).

   Under Section 503(b)(6) of the Act, 47 U.S.C. S503(b)(6), we may only
   propose forfeitures to non-licensees for apparent violations that occurred
   within one year of the date of the NAL. However, Section 503(b) does not
   bar us from assessing whether Craig's conduct prior to that time period
   apparently violated the Act, in determining the appropriate forfeiture
   amount for those violations that occurred within the one-year statute of
   limitations. Inphonic, Inc., 20 FCC Rcd 13277, 13286 (2005).

   Section 3(35) of the Act defines "radio station" as a "station equipped to
   engage in radio communication or radio transmission of energy." 47 U.S.C.
   S 153(35).

   Revision of Rules and Policies for the Direct Broadcast Satellite Service,
   11 FCC Rcd 9712, 9747 (1995). Petition for Review Denied by DIRECTV, Inc.
   v. FCC, 110 F.3d 816 (D.C. Cir. 1997).

   47 U.S.C. S 301.

   Jean L. Senatus, 20 FCC Rcd 14418 (EB 2005).

   See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875-76 (2002),
   Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994).

   See, e.g., Ronald E. Sauer, 19 FCC Rcd 14884 (EB 2004); Kornwell Chan, 16
   FCC Rcd 14893 (EB 2001).

   Octavio Sarmiento, Jr. 17 FCC Rcd 25277, 25279 (EB 2002). Section 504(a)
   of the Act provides that any suit brought by the United States in federal
   district court for the collection of a forfeiture imposed pursuant to the
   Act shall be a trial de novo. 47 U.S.C. S 504(a).

   47 U.S.C. S 503(b)(4). See also Section 1.80(f) of the Rules, 47 C.F.R. S
   1.80(f); and Section 1.80(g) of the Rules, which states that procedures
   for hearings "will ordinarily be followed only when a hearing is being
   held for some reason other than the assessment of a forfeiture ...." 47
   C.F.R. S 1.80(g). See Arcom Communications, 20 FCC Rcd 20061 (EB 2005),
   affirmed DA 06-1536, 2006 WL 2310791 (rel. August 9, 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 06-1935

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   Federal Communications Commission DA 06-1935