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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-03-PO-128
David Michael Oaks
) NAL/Acct. No. 200432920002
Unlicensed FM Radio Station
) FRN: 0010288587
MEMORANDUM OPINION AND ORDER
Adopted: January 25, 2007 Released: January 29, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we dismiss the
Petition for Reconsideration filed by Mr. David Michael Oaks, ("Mr.
Oaks"). Mr. Oaks seeks reconsideration of the Forfeiture Order in
which the Enforcement Bureau ("Bureau") found him liable for a
monetary forfeiture in the amount of ten thousand dollars ($10,000)
for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violation
involves Mr. Oaks's operation of an unlicensed FM broadcast station on
the frequency 98.1 MHz, at his residence in Beaverton, Oregon. For the
reasons provided below, we will dismiss Mr. Oaks' petition for
reconsideration as untimely.
2. On June 9, 2003, an agent of the Commission's Portland, Oregon
Resident Agent Office ("Portland Office") observed an antenna on the
balcony of an apartment building that was operating on the frequency
98.1 MHz at a field strength level that exceeded the permissible level
for a non-licensed low-power radio transmitter by 1,719 times. The
agent placed a Notice of Unlicensed Radio Operation under the
apartment door corresponding to the balcony upon which the antenna was
3. On June 11, 2003, the Portland Office sent an Official Notice of
Unlicensed Radio Operation ("Official Notice") by both certified and
regular mail. The Official Notice described the FM antenna's location
and frequency, and noted that the Commission had no authorization on
record permitting operation of the station. The Official Notice stated
that if Mr. Oaks was operating a radio station without Commission
authorization, he must discontinue the operation immediately, and
further warned Mr. Oaks that fine, imprisonment, and equipment
confiscation could result from any operation of radio transmitting
equipment without Commission authorization. Although the certified
mail Official Notice was returned as "unclaimed," the copy of the
Official Notice that was sent by regular mail was not returned by the
4. On July 3, 2003, an agent of the Portland Office spoke with Mr. Oaks
by telephone regarding the unlicensed operation of radio stations in
the FM broadcast frequency band. During the course of the
conversation, Mr. Oaks admitted to operation of the unlicensed station
from his apartment. The agent advised Mr. Oaks of the operational
parameters and limitations of Part 15 (unlicensed) transmitters. The
agent warned Mr. Oaks again that if the radio station was in excess of
Part 15 limitations, Mr. Oaks could be the subject of further
5. On July 14, 2003, an agent of the Portland Office again located a
signal on 98.1 MHz operating from Mr. Oaks' residence. Field strength
measurements showed that the field strength of the station's signal
exceeded the permissible level for a non-licensed low-power ratio
transmitter by 435 times. A second Notice of Unlicensed Radio
Operation was placed under Mr. Oaks' apartment door. On September 16,
2003, the agent again located a signal on 98.1 MHz at Mr. Oaks'
residence. Field strength measurements showed that the field strength
of the station's signal exceeded the permissible level for a
non-licensed low-power ratio transmitter by 85 times. A second
Official Notice of Unlicensed Radio Operation was sent on September
17, 2003, to Mr. Oaks by certified and regular mail, with the same
delivery result as the first.
6. On March 12, 2004, the Portland Office issued a Notice of Apparent
Liability ("NAL") to Mr. Oaks for ten thousand dollars ($10,000) for
apparent willful and repeated violation of Section 301 of the Act. Mr.
Oaks responded to the NAL in a timely manner, arguing that he was not
trying to operate a pirate station, but simply to have wireless
connection for radio reception among the rooms of his apartment. Mr.
Oaks stated that he informed the Portland Office agent that he had no
equipment with which to test the power of his antenna, and Mr. Oaks
indicates that he was under the impression that he was working with
the agent to identify an acceptable power limitation. Mr. Oaks says
that in spite of his requests, he received no actual antenna strength
figures from the agent. Mr. Oaks says he requested further
measurements of his antenna power from the Portland Office agent by
e-mail. When Mr. Oaks received the September 17, 2003 notice, he
states that he realized that the transmitter could not be turned down
far enough to satisfy FCC regulations and still have an audible signal
in his apartment, and he discontinued operating the station. In
support of his argument, Mr. Oaks points out that each time the agent
tested the antenna's signal strength, the level had decreased
7. The Bureau affirmed the NAL in the Forfeiture Order, pointing out that
"[t]he Commission is not required to engineer the operating parameters
of a station." It noted that Mr. Oaks was told that he could purchase
a Part 15 wireless microphone with which to compare the signal range
of his antenna, and Mr. Oaks chose not to do so. Finally, the Bureau
stated that Mr. Oaks was on notice from repeated warnings of the
subject violation that operating the transmitter could result in
sanctions. Mr. Oaks filed a petition for reconsideration of the
Forfeiture Order, which the Commission received on December 8, 2004.
8. Section 405 of the Act requires that a petition for reconsideration of
a Commission action or an action by delegated authority must be filed
no later than 30 days after the action that is the subject of the
appeal. Once it has made public notice of the action pursuant to
Section 1.4 of the Rules, the Commission loses jurisdiction to
consider an appeal after 30 days have passed. Section 1.106 of the
Rules reflects this statutory mandate.
9. Mr. Oaks did not timely file his petition for reconsideration of the
Forfeiture Order. The Forfeiture Order was released and placed on
public notice on November 5, 2004. The thirtieth day after November 5,
2004 was December 5, 2004 (a Sunday). Mr. Oaks' petition for
reconsideration was therefore due on December 6, 2004. His petition
for reconsideration was not received by the Commission until December
8, 2004. After December 6, 2004, pursuant to the Act, the Commission
has no jurisdiction to consider Mr. Oaks' petition for
reconsideration. Accordingly, we must dismiss Mr. Oaks' petition for
reconsideration as untimely.
IV. ordering clauses
10. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Act, and Section 1.106(f) of the Rules, the letter petition for
reconsideration filed by David Michael Oaks IS DISMISSED.
11. Payment of the forfeiture assessed by the Forfeiture Order 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. The payment must include the NAL/Acct. No. and FRN No.
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. Requests for
payment of the full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12^th Street, S.W., Room 1A625, Washington, D.C. 20554.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Mr. Michael David
Oaks at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
David Michael Oaks, 19 FCC Rcd 21980 (Enf. Bur. 2004) ("Forfeiture
47 U.S.C. S 301.
Section 15.239 of the Rules, 47 C.F.R. S 15.239, provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmissions does not exceed 250 uV/M at three
47 C.F.R. S 15.1 et. seq. It appears that the agent specified that the
antenna should not have more signal strength than a "Mr. Microphone," a
popular Part 15 consumer device for low-power, short range broadcasting.
Response to NAL, received March 22, 2004.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432920002
(Enf. Bur., Portland Office, released March 12, 2004).
Letter to "Sir or Madam" from Mike Oaks, reference File No. EB-03-PO-128,
undated, received at the Commission on December 8, 2004.
47 U.S.C. S 405(a).
47 C.F.R. S 1.4.
47 C.F.R. S 1.106(f).
Daily Digest, Vol. 23, No. 211, November 5, 2004.
47 C.F.R. S 1.4(j) provides that, when the calculated filing date falls on
a "holiday," the document is due to be filed on the next business day. 47
C.F.R. S 1.4(e)(2) defines the term "holiday" as "Saturday, Sunday,
officially recognized Federal legal holidays and any other day on which
the Commission's offices are closed and not reopened before 5:30 p.m."
Reuters Ltd. v. FCC, 781 F. 2d 946, 951 (D.C. Cir. 1986); National Black
Media Coalition v. FCC, 760 F. 2d 1297, 1299-1300 (D.C. Cir. 1985, Scalia,
J.) (FCC has no jurisdiction to consider an appeal after 30 days have
passed from date of public notice, distinguishing Gardner v. FCC, 530 F.
2d 1086 (D.C. Cir. 1976)).
Metromedia, Inc., 56 FCC2d 909 (1975) (Commission may not waive 30 day
filing period to accept a petition for reconsideration filed one day
late); Mobile Telephone, Inc. 91 FCC 2d 907 PP 4-5 (1982); Nextel
Communications, Inc., 13 FCC Rcd. 281, 283 P 6 (Wireless Telecom. Bur.
47 C.F.R. S 1.106(f).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 07-211
Federal Communications Commission DA 07-211