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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-MA-046
Adilson Alves de Almeida ) NAL/Acct. No. 200732600001
Boca Raton, Florida ) FRN: 0009331521
)
)
FORFEITURE ORDER
Adopted: December 6, 2010 Released: December 8, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven hundred fifty dollars ($750) to Adilson Alves de
Almeida ("Mr. de Almeida") for his willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended ("Act"). The
noted violations involve Mr. Almeida's operation of an unlicensed
radio transmitter.
II. BACKGROUND
2. On December 6, 2006, in response to a complaint of interference from
an authorized government user, agents from the Enforcement Bureau's
Miami Office ("Miami Office") investigated unlicensed radio activity
in the Boca Raton, Florida area. On this date and two subsequent dates
- December 27, 2006 and January 11, 2007 - the agents monitored
transmissions on the frequencies 294.080 MHz, 296.550 MHz, and 294.023
MHz, respectively, from over four miles from the signals' source. The
agents, using direction-finding techniques, located each of these
transmissions to Mr. de Almeida's residence in Boca Raton and
determined that the field strengths of these transmissions exceeded
the limits for unlicensed operation under Part 15 of the Commission's
Rules ("Rules"). Moreover, the 267-322 MHz frequency band is allocated
solely for Federal Government use and Mr. de Almeida would therefore
not be eligible for a license to operate in this band. On April 19,
2007, the Miami Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $10,000 to Mr. de Almeida for
operation of a radio transmitter without a license. Mr. de Almeida
submitted a response to the NAL requesting cancellation of the
forfeiture, based on his removal of the Yagi-type antenna from his
roof, his expressed regret, and his assurance that radio interference
would not happen again.
3. On September 15, 2008, in response to another complaint of
interference from an authorized government user, agents from the Miami
Office again investigated unlicensed radio activity in the Boca Raton
area. The agents monitored transmissions on the frequency 297.235 MHz
from approximately one mile from the signal's source. The agents,
using direction-finding techniques, located the transmissions to Mr.
de Almeida's residence in Boca Raton. That same day, agents inspected
Mr. de Almeida's radio station and found an Alinco transceiver that
was programmed to operate on 297.235 MHz. Given the output power and
the fact that it was not certified for use as a Part 15 device, the
agents determined that the Alinco transceiver could not be operated
pursuant to Part 15 of the Rules. Moreover, the 267-322 MHz frequency
band is allocated solely for Federal Government use and Mr. de Almeida
would therefore not be eligible for a license to operate in this band.
On September 25, 2008, the Miami Office issued a Notice of Apparent
Liability for Forfeiture ("Second NAL") in the amount of $20,000 to
Mr. de Almeida for operation of a radio transmitter without a license.
Mr. de Almeida submitted a response to the Second NAL requesting
cancellation of the forfeiture based on his claim that he did not
operate a radio transmitter on an unlicensed basis and his inability
to pay the proposed forfeiture.
III. DISCUSSION
4. 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. In examining Mr. de
Almeida's responses, 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. As discussed below, we have
considered Mr. de Almeida's responses in light of these statutory
factors and reduce the proposed forfeitures to $750, based solely on
Mr. de Almeida's documented inability to pay.
5. Section 301 of the Act requires 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. Agents from the Miami
Office determined that, on December 6 and December 27, 2006, January
11, 2007, and September 15, 2008, an unlicensed radio station operated
on frequencies 294.080, 296.550, 294.023, and 297.235 MHZ,
respectively, from Mr. de Almeida's residence in Boca Raton, Florida.
Mr. de Almeida is not eligible for a license to operate on these
frequencies. Thus, based on the evidence before us, we find that Mr.
de Almeida willfully and repeatedly violated Section 301 of the Act by
operating radio transmission apparatus without a license.
6. In response to the NAL, Mr. de Almeida admitted to operating a radio
transmitter, apologized for any inconvenience he had caused, and
stated he took down his Yagi-type antenna and would not cause similar
problems again. In response to the Second NAL, Mr. de Almeida denied
operation, claiming that he did not have an antenna for his
transceiver and noting that none was found during the agents'
inspection of his residence on September 15, 2008. However, he
provided no explanation for why the signals on the frequency 297.235
MHz had been emanating from his residence on this date prior to the
agents' inspection. Accordingly, we are unpersuaded by Mr. de
Almeida's claims that he did not operate radio transmission apparatus
without a license on September 15, 2008.
7. Finally, Mr. de Almeida requests cancellation of the forfeitures
because he has no income and is a dependent of his son. He submits his
three most recent years of tax returns to substantiate his claim. In
analyzing a financial hardship claim, the Commission has determined
that, in general, an entity's gross revenues are the best indicator of
its ability to pay a forfeiture. We have reviewed the documentation
provided by Mr. de Almeida and conclude that reduction of the
forfeitures to $750 is warranted based solely on his lack of income
and the fact that he is a dependent of his son. We decline, however,
to cancel the proposed forfeitures, due to the seriousness and
repeated nature of the violations. In addition, we caution Mr. de
Almeida that further violations of our rules may be subject to more
severe enforcement penalties, including seizure of equipment and
criminal sanctions.
IV. ORDERING CLAUSES
8. 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, Adilson Alves de Almeida IS
LIABLE FOR A MONETARY FORFEITURE in the amount of seven hundred fifty
dollars ($750) for violations of Section 301 of the Act.
9. 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 credit card, 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.
Mr. de Almeida shall also send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent both by
First Class and by Certified Mail Return Receipt Requested to Adilson
Alves de Almeida at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732600001
(Enf. Bur., Miami Office, rel. April 19, 2007) (proposing $10,000
forfeiture); Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200832600001 (Enf. Bur., Miami Office, rel. September 25, 2008) (proposing
$20,000 forfeiture).
47 U.S.C. S: 301.
On December 27, 2006 and January 11, 2007, agents observed a Yagi-type
antenna mounted at the roof level in the back of the residence.
Section 15.209 of the Rules provides that non-licensed broadcasting
between 216-960 MHz band is permitted only if the field strength of the
transmission does not exceed 200 mV/m at three meters. 47 C.F.R. S:
15.209. Devices compliant with Part 15 typically have a range of less than
one mile.
47 C.F.R. S: 2.106.
NAL, NAL/Acct. No. 200732600001 (Enf. Bur., Miami Office, rel. April 19,
2007).
Letter from Adilson Alves de Almeida to South Central Region, Enforcement
Bureau (April 25, 2007).
According to the Alinco manufacturer specifications, at its lowest
setting, the Alinco radio was capable of operating with approximately 5
watts of power.
47 C.F.R. S: 15.201(b).
47 C.F.R. S: 2.106.
Second NAL, NAL/Acct. No. 200832600001 (Enf. Bur., Miami Office, rel.
September 25, 2008).
Letter from Adilson Alves de Almeida to South Central Region, Enforcement
Bureau (October 14, 2008).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
47 C.F.R. S:S: 15.209, 15.201(b).
Pursuant to the Table of Allocations, the 267-322 MHz Band is allocated
solely for Federal Government Use. 47 C.F.R. S: 2.106.
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,' ... 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, e.g., Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 P: 5
(1991), recon. denied, 7 FCC Rcd 3454 (1992).
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 at 4388; Western Wireless Corporation, 18 FCC Rcd
10319, 10328 n.56 (2003).
On September 15, 2008, agents from the Miami Office found the source of
the transmissions on 297.235 MHz at approximately 11:38 AM and were seen
by Mr. de Almeida at approximately 11:48 AM. They left the area after
being seen by Mr. de Almeida and did not return to inspect Mr. de
Almeida's residence until 1:25 PM. Mr. de Almeida could have removed the
antenna between 11:48 AM and 1:25 PM.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
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 10-2306
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Federal Communications Commission DA 10-2306