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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File Number: EB-06-CG-064
)
Steven A. Skalecki NAL/Acct. No: 200832320001
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Milwaukee, WI FRN: 0017228933
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)
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FORFEITURE ORDER
Adopted: March 13, 2009 Released: March 17, 2009
By the Regional Director, Northeast 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 Steven A. Skalecki
("Skalecki") for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended ("Act"), by operating radio
transmitting equipment and providing services and facilities
incidental to the operation of an unlicensed radio transmitter on the
frequency 92.9 MHz in Milwaukee, WI without a license. In this Order,
we consider Skalecki's claim that he did not operate an unlicensed
radio station in Milwaukee, WI and that the unlicensed station at
issue here was operating from another nearby property.
III. BACKGROUND
2. On March 25, 2006, in response to a complaint, Commission agents,
using a mobile direction-finding vehicle, monitored the frequency 92.9
MHz in Milwaukee, WI. The agents observed a radio station broadcasting
on 92.9 MHz and determined that the station was operating from a
single family residence at 9026 West Burdick Avenue, Milwaukee,
Wisconsin, 53227. The agents subsequently 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. An agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 92.9 MHz in Milwaukee, Wisconsin.
3. Later that day, the agents knocked on the front door of 9026 West
Burdick Avenue, but there was no response. A Notice of Unlicensed
Operation ("NOUO") was left between the glass panes in the front storm
door. The NOUO warned Skalecki that operation of the unlicensed radio
station on 92.9 MHz violated Section 301 of the Act and outlined the
potential penalties for such a violation, including seizure of the
equipment, fines and imprisonment. The NOUO also directed Skalecki to
terminate operation of the unlicensed station immediately.
4. The agent searched City of Milwaukee property tax records and found
that Steven A. Skalecki is listed in those records as the owner of
9026 West Burdick Avenue. The agent further determined that Mr.
Skalecki is the individual responsible for the utilities at 9026 West
Burdick Avenue.
5. On April 17, 2006, the Chicago District Office sent, via certified
mail, return receipt requested, a Notice of Unlicensed Operation
("NOUO") addressed to Steven A. Skalecki at 9026 West Burdick Avenue,
Milwaukee, Wisconsin 53227. The NOUO warned Skalecki that operation of
the unlicensed radio station on 92.9 MHz violated Section 301 of the
Act and outlined the potential penalties for such a violation,
including seizure of the equipment, fines and imprisonment. The NOUO
also directed Skalecki to terminate operation of the unlicensed
station immediately and provided Skalecki ten days to reply. The
return receipt from the U.S. Postal Service shows that Mr. Skalecki
signed for and received the NOUO on April 24, 2006.
6. On May 6, 2006, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 92.9 MHz in Milwaukee, WI. The agents
again observed a radio station broadcasting on 92.9 MHz and determined
that the station was operating from 9026 West Burdick Avenue in
Milwaukee, Wisconsin. The agents subsequently 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 one answered the front door.
7. On May 10, 2006, the Chicago office received a response ("Response")
to the NOUO issued to Skalecki. In the Response, Mr. Skalecki denied
having any broadcast equipment and also stated that no local
broadcasts can be heard on 92.9 MHz. In the Response, Mr. Skalecki
also acknowledged receipt of the NOUO left in the front storm door of
9026 West Burdick Avenue by Commission Agents on March 25, 2006.
8. On March 1, 2007, in response to a complaint of interference from an
unlicensed station, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 92.9 MHz in
Milwaukee, WI. The agent again observed a radio station broadcasting
on 92.9 MHz and determined that the station was operating from 9026
West Burdick Avenue in Milwaukee, Wisconsin. The agent subsequently
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.
9. On March 14, 2007, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 92.9 MHz in Milwaukee, WI. The agents
again observed a radio station broadcasting on 92.9 MHz and determined
that the station was operating from 9026 West Burdick Avenue in
Milwaukee, Wisconsin. The Agents knocked on the front door of 9026
West Burdick Avenue, but there was no response.
10. On May 24, 2007, a Commission agent, using a mobile direction-finding
vehicle, monitored the frequency 92.9 MHz in Milwaukee, WI. The agent
again observed a radio station broadcasting on 92.9 MHz and determined
that the station was operating from 9026 West Burdick Avenue in
Milwaukee, Wisconsin. The agent 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 one answered the front door.
11. On May 28, 2007, a Commission agent monitored the frequency 92.9 MHz
in Milwaukee, WI. The agent again observed a radio station
broadcasting on 92.9 MHz and determined that the station was operating
from 9026 West Burdick Avenue in Milwaukee, Wisconsin. No one
answered the front door. The agent interviewed a neighbor who
confirmed that Steven Skalecki lived at this address.
12. On December 14, 2007, the Chicago Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") to Skalecki in the amount of
$10,000 for operating radio transmitting equipment on the frequency
92.9 MHz in Milwaukee, WI without a license. In his response to the
NAL, Skalecki denies operating an unlicensed station on 92.9 MHz at
9026 West Brudick Avenue in Milwaukee, Wisconsin. Skalecki reports
that he operates a weather monitoring station from that property, but
claims that the unlicensed broadcast station was operating from
another nearby residence on which several antennas are located.
IV. DISCUSSION
13. 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 ("Forfeiture
Policy Statement"). In examining Skalecki'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.
14. We decline to cancel the proposed forfeiture based on Skalecki's claim
that he was not operating an unlicensed broadcast station from 9026
West Brudick Avenue in Milwaukee, Wisconsin. The only evidence
Skalecki provides in support of his claim is a list of nine dates on
which he states he observed a station operating on 92.9 MHz from a
nearby residence at South 93rd Street and West Oklahoma Avenue. FCC
agents determined, using mobile direction finding equipment, that an
unlicensed broadcast station was operating from 9026 West Brudick
Avenue in Milwaukee, Wisconsin on six occasions. Absent evidence that
FCC agents' direction findings and field strength measurements were in
error, we stand by our agents' determination that an unlicensed
broadcast station was operating from that location.
15. We reject Skalecki's claim that we cannot assess a forfeiture because
agents were unable to conduct an inspection. Skalecki claims that he
was unaware of the five visits that occurred after the March 25, 2006,
visit and that, had he known of those visits and been available, he
would have allowed agents to conduct an inspection. Whether or not
agents were able to inspect the station, however, does not affect our
determination here that Skalecki violated Section 301 of the Act.
First, as noted above, agents determined, using direction finding
equipment, that an unlicensed broadcast station operated from 9026
West Brudick Avenue in Milwaukee, Wisconsin on six occasions. Second,
Section 301 of the Act states 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 granted under the provisions of the Act.
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 things the receipt, forwarding, and delivery
of communications) incidental to such transmission." We previously
have held that liability for unlicensed operation may be assigned to
an individual who provides services and facilities incidental to the
transmission of communications by radio. An agent determined that
Skalecki is listed in the City of Milwaukee property tax records as
the owner of 9026 West Burdick Avenue and that he is the individual
responsible for the utilities at that address. We therefore find that,
even absent a station inspection, Skalecki is responsible for the
unlicensed station operation on 92.9 MHz at 9026 West Burdick Avenue
in Milwaukee, WI, because he provided the facilities used in the
operation of the station.
16. We have examined Skalecki'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 Skalecki
willfully and repeatedly violated Section 301 of the Act and that the
$10,000 forfeiture proposed in the NAL is warranted.
V. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Steven A. Skalecki IS LIABLE FOR
A MONETARY FORFEITURE in the amount of ten thousand dollars ($10,00)
for violation of Section 301 of the Act.
18. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Skalecki shall also send electronic
notification on the date said payment is made to NER-Response@fcc.gov.
19. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Steven A.
Skalecki at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Mofffitt
Regional Director, Northeast 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. 47 C.F.R. S:
15.239. Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed Part 15
transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832320001
(Enf. Bur., Chicago Office, rel. December 14, 2007). Skalecki notes in his
response that the NAL was issued six months from the last broadcast on
92.9 MHz. Pursuant to Section 503(b)(6)(A), the Commission had one year
from the date of the violation charged to issue a NAL. 47 U.S.C. S:
503(b)(6)(A).
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)(E).
Skalecki claims that he determined the location from which the station
allegedly was operating based on interference he was received while in his
car. Skalecki, however, provides no supporting documentation.
Skalecki also provides a number of dates beginning in June 2007 on which
he claims he observed a station operating on 92.9 MHz. He also claims that
he heard the station broadcast the following announcement - "Due to
Federal regulations, we were asked to move our transmitter to a new
location and FM frequency. Soon this station will be broadcasting on 99.9
FM." Skalecki further reports that the transition occurred on July 4,
2007, and that, with a friend who has a "transmitter hunter device," he
traced the station on 99.9 MHz to 2025 S. Muskego Avenue in Milwaukee,
Wisconsin. The violations at issue in this NAL took place between March
25, 2006, and May 28, 2007, so any claims with regard to an unlicensed
station operating after May 28, 2007, have no bearing on the instant case.
FCC agents receive extensive training on how to use professional radio
direction-finding equipment. Agents are specially trained on how to
confirm accurate radio bearings on signal sources in congested areas. In
this case, the accuracy of the results is further supported by the fact
that the same signal source was identified multiple times.
47 U.S.C. S: 153(33).
See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793 (EB 2006).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4); 47 U.S.C. S:
301.
Federal Communications Commission DA 09-588
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Federal Communications Commission DA 09-588