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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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In the Matter of File No: EB-09-HU-0065
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Jerry and Deborah Stevens NAL/Acct. No. 201032540002
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Austin, Texas FRN 0019271485
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FORFEITURE ORDER
Adopted: January 5, 2010 Released: January 7, 2010
By the Regional Director, South Central 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 Jerry and Deborah
Stevens for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violations
involve Jerry and Deborah Stevens' operation of an unlicensed radio
transmitter on the frequency 90.1 MHz in Austin, Texas.
II. BACKGROUND
2. On August 27, 2009, in response to a complaint about an unlicensed
radio station in the Austin, Texas area, agents from the Commission's
Houston Office of the Enforcement Bureau ("Houston Office") confirmed
by direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Jerry and Deborah Stevens' residence in Austin,
Texas. The agents took field strength measurements of the signals and
determined the signals exceeded the limits for operation under Part 15
of Commission's Rules ("Rules") and therefore, required a license. A
search of the Commission's databases found no evidence of a Commission
authorization for operation on 90.1 MHz at this location in Austin,
Texas.
3. On August 31, 2009, the Houston Office issued a Notice of Unlicensed
Operation to Jerry and Deborah Stevens warning them that the radio
transmissions on 90.1 MHz from their residence were not authorized by
the Commission and outlining possible penalties for continued
unlicensed operation. On September 14, 2009, the Houston Office
received a reply from Jerry and Deborah Stevens acknowledging receipt
of the Notice of Unlicensed Operation and requesting additional time
to provide information. Jerry and Deborah Stevens were granted an
additional thirty days to provide the Commission with information
concerning authority to operate on the frequency 90.1 MHz from their
residence.
4. On September 21, 2009, agents from the Houston Office confirmed by
direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Jerry and Deborah Stevens' residence in Austin,
Texas. The agents took field strength measurements of the signals and
determined the signals exceeded the limits for operation under Part 15
of Commission's Rules.
5. On October 16, 2009, an agent from the Houston Office again confirmed
by direction finding techniques that signals on the frequency 90.1 MHz
were emanating from Jerry and Deborah Stevens' residence in Austin,
Texas. The agent took field strength measurements of the signals and
determined the signals exceeded the limits for operation under Part 15
of the Rules.
6. On October 19, 2009, the Houston Office received a second response to
the Notice of Unlicensed Operation from Jerry and Deborah Stevens. In
this response, Jerry and Deborah Stevens admitted operating radio
transmitting equipment only within the boundaries of the State of
Texas, and questioned the Commission's jurisdiction over intrastate
communications.
7. On November 10, 2009, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Jerry and Deborah Stevens in the amount of
ten thousand dollars ($10,000), for the apparent willful and repeated
violation of Section 301 of the Act. Jerry and Deborah Stevens
submitted a response to the NAL denying that the Commission has
jurisdiction over this matter and requesting that the matter be
dropped.
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 Jerry and Deborah Stevens' 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 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, specifically "from one place in any
State, Territory, or possession of the United States or in the
District of Columbia to another place in the same State, Territory,
possession, or District," or from one place within a State to another
State, except under and in accordance with the Act and with a license
granted under the provisions of the Act. Thus, Section 301 of the Act
explicitly sets forth the Commission's jurisdiction over all radio
transmissions, both interstate and intrastate. On August 27, September
21, and October 16, 2009, agents from the Houston Office determined
that unlicensed radio transmissions on the frequency 90.1 MHz
originated from Jerry and Deborah Stevens' residence. Jerry and
Deborah Stevens were notified that the unlicensed radio transmissions
violated the Act by a Notice of Unlicensed Operation dated August 31,
2009. In response to the Notice of Unlicensed Operation, Jerry and
Deborah Stevens did not deny that they operated an unlicensed radio
station from their residence, and admitted to operating a radio
station solely within the borders of Texas. In response to the NAL,
Jerry and Deborah Stevens did not deny any of the facts raised in the
NAL. The Stevens also admitted that the transmissions occurred,
stating that "the above referenced transmission does not involve any
state other than the State of Texas." Thus, based on the evidence
before us, we find that Jerry and Deborah Stevens willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission apparatus without a license on August 27, September 21,
and October 16, 2009.
10. In response to the NAL, Jerry and Deborah Stevens assert that the
Commission lacks jurisdiction over their actions, because they
operated a radio station solely within the boundaries of the State of
Texas. The Stevens also question whether the resident agent who signed
the NAL had the authority to do so.
11. As stated above, section 301 of the Act explicitly sets forth the
Commission's jurisdiction over all radio transmissions, both
interstate and intrastate. Thus, contrary to the Stevens' assertion,
the Commission does not lack jurisdiction over the use of radio
transmitting equipment within the State of Texas. Moreover, the
resident agent who signed the NAL is stationed in Houston, Texas and
is an employee of the Commission, working in the South Central Region
of the Enforcement Bureau. Resident agents at each installation are
delegated authority by the Commission to act upon applications,
requests, or other matters, which are not in hearing status. In
addition, pursuant to Section 1.80(f), a designee of the Commission,
such as the resident agent, may issue a written notice of apparent
liability. The notice issued by the agent identified the provision of
the Act apparently violated, described the nature and dates of the
apparent violations, and specified the proposed forfeiture penalty.
Accordingly, issuance of the NAL was proper.
12. We have examined Jerry and Deborah Stevens' 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 find no
basis for cancellation or reduction of the $10,000 forfeiture proposed
for this violation.
IV. ORDERING CLAUSES
13. 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, Jerry and Deborah Stevens ARE
LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for violations of Section 301 of the Act.
14. 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. 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.
Jerry and Deborah Stevens will also send electronic notification on
the date said payment is made to SCR-Response@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Jerry and Deborah
Stevens at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central 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 uV/m at three meters. 47 C.F.R. S:15.239.
On August 27, 2009, field strength measurements indicated that the signals
were 1,110 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
On September 21, 2009, field strength measurements indicated that the
signals were 1,225 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
On October 16, 2009, field strength measurements indicated that the
signals were 1,547 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032540002
(Enf. Bur., Houston Office, November 10, 2009) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
See Joseph Frank Ptak, Decision, 14 FCC Rcd 9317, 9320, para. 13 (1999).
See also U.S. v. Butterfield, 91 F.Supp.2d 704 (D.VT 2000).
Response to NAL at 6.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
See Joseph Frank Ptak, Decision, 14 FCC Rcd 9317, 9320, para. 13 (1999).
See also U.S. v. Butterfield, 91 F.Supp.2d 704 (D.VT 2000).
47 C.F.R. S: 0.314.
47 C.F.R. S: 1.80(f).
See 47 C.F.R. S:S: 1.80(f)(1)(i)-(iv).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-15
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Federal Communications Commission DA 10-15