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                                   Before the

                       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             
     Beaverton, Oregon                                             

                          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
       Postal Service.

    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
       enforcement action.

    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.

   III. discussion

    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.


   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.

   (...continued from previous page)


   Federal Communications Commission DA 07-211


   Federal Communications Commission DA 07-211