Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
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
1
2
Federal Communications Commission DA 06-1935