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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                 )                                
                                                                  
     In the Matter of            )                                
                                                                  
     Daniel K. Roberts           )   File Number: EB-09-SF-0031   
                                                                  
     a/k/a "Monkey Man"          )   NAL/Acct. No.: 200932960004  
                                                                  
     a/k/a "Monkey"              )   FRN: 0019070572              
                                                                  
     San Francisco, California   )                                
                                                                  
                                 )                                


                                FORFEITURE ORDER

   Adopted: October 19, 2011 Released: October 21, 2011

   By the Regional Director, Western 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 Daniel K. Roberts
       a/k/a "Monkey Man" a/k/a "Monkey" ("Roberts") in San Francisco, 
       California, for willfully and repeatedly violating section 301  of the
       Communications Act of 1934, as amended ("Act"), by operating an
       unlicensed radio broadcast station.

   II. BACKGROUND

    2. Roberts is the operator of Pirate Cat Radio ("PCR") which operated a
       radio broadcast station without a license issued by the FCC on 87.9
       MHz in San Francisco, California. Roberts is also the executive of the
       Pirate Cat Cafe and Studio located at 2781 21st Street, San Francisco,
       California. In 2008, Roberts began operating PCR from a radio studio
       located at the Pirate Cat Cafe and Studio. At the time the NAL was
       issued, the PCR website (www.piratecatradio.com) prominently featured
       Roberts, and PCR described itself as an "unlicensed low powered
       community radio" located at the same address as the Pirate Cat Cafe
       and Studio. The Enforcement Bureau's San Francisco Office issued
       numerous warnings and Notices of Unlicensed Operation ("NOUOs") to
       Roberts and PCR concerning unlicensed radio operations, which detailed
       the potential penalties for operating an unlicensed radio station and
       for further violations of the Act and the Commission's rules
       ("Rules").

    3. On April 28, 2009, and on April 29, 2009, agents from the San
       Francisco Office, using radio direction-finding methods, determined
       that the transmission source of a radio signal on 87.9 MHz was an
       antenna on the roof of a residence at 841 Corbett Avenue, San
       Francisco, California. The agents took field strength measurements of
       the signals and determined that the signals being broadcast exceeded
       the limits for operation under Part 15 of the Rules and therefore
       required a license. A review of the Commission's records found no
       evidence of a Commission authorization for this operation on 87.9 MHz
       in San Francisco, California. Also on April 29, 2009, the agents
       observed Roberts operating and controlling the unlicensed radio
       station on 87.9 MHz from the Pirate Cat Cafe and Studio at 2781 21st
       Street, San Francisco, California. The agents subsequently monitored
       PCR and located the signal again emanating from 841 Corbett Avenue,
       San Francisco, California. The agents recognized Roberts' voice and
       identified Roberts as the voice on the unlicensed transmissions on
       87.9 MHz.

    4. On August 31, 2009, the Enforcement Bureau's San Francisco Office
       issued a Notice of Apparent Liability for Forfeiture ("NAL") in the
       amount of $10,000 to Roberts, finding that Roberts apparently
       willfully and repeatedly violated section 301 of the Act by operating
       an unlicensed broadcast station on 87.9 MHz in San Francisco,
       California. After the issuance of the NAL, the broadcasts of PCR on
       87.9 MHz in San Francisco ceased. Roberts filed a response to the NAL
       on October 23, 2009, after receiving an extension of time from the San
       Francisco Office to respond. In his Response,  Roberts acknowledges
       his involvement with PCR, but argues that he is not associated with
       the transmissions of PCR. Roberts also argues that he is "financially
       unable" to pay the forfeiture amount.

   III. DISCUSSION

    5. The proposed forfeiture in this case was assessed in accordance with
       section 503(b) of the Act, section 1.80 of the Commission's rules, and
       the Commission's forfeiture guidelines set forth in its Forfeiture
       Policy Statement. Section 503(b)(2)(E) 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.

    6. 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." After
       issuing numerous warnings and notices to Roberts, the San Francisco
       Office, using radio frequency direction finding equipment, on April 28
       and 29, 2009, located the source of the transmission of Roberts' PCR
       broadcasts to 841 Corbett Avenue, San Francisco, California. The San
       Francisco agents determined that the transmission originated at
       Roberts' PCR cafe, and that Roberts exercised control over the
       broadcast. The San Francisco Office therefore found that Roberts
       apparently willfully and repeatedly violated section 301 of the Act by
       operating an unlicensed broadcast station on 87.9 MHz in San
       Francisco, California.

    7. In his Response, Roberts "acknowledges his involvement in extra-legal
       broadcasting years ago"; however, he denies that "transmissions have
       ever emanated from the location admittedly under his control, the
       Pirate Cat Radio cafe and studio at 2781 21st Street in San
       Francisco." Roberts admits that "on April 28 and 29, 2009, when agents
       observed [him] at the Pirate Cat Radio address, [he] was operating the
       board, mixers and espresso machine."  He denies that he "was
       `operating' or `controlling' any `unlicensed radio station on 87.9
       MHz' or any transmission of energy on any frequency." Roberts alleges
       that the internet streamed program service from PCR is downloaded and
       broadcast by third parties. Finally, Roberts acknowledges that the PCR
       website described his "facility as [an]`unlicensed low powered
       community radio'"; and that "[t]his statement does not currently
       appear on the website, and is inaccurate because Pirate Cat Radio,
       while certainly unlicensed, has never originated broadcast
       transmissions or extra legal transmission of any kind."

    8. Roberts mistakenly argues that a violation of section 301 of the Act
       requires that the violator be actually operating a transmitter at the
       location of the studio and nothing less. This is incorrect. For the
       purposes of section 301, the word "operate" has been interpreted to
       mean "the general conduct or management of a station as a whole, as
       distinct from the specific technical work involved in the actual
       transmission of signals." In other words, the use of the word
       "operate" in section 301 of the Act captures not just the "actual,
       mechanical manipulation of radio apparatus," but also operation of a
       radio station generally. To determine whether an individual is
       involved in the general conduct or management of the station, we can
       consider whether such individual exercises control over the station,
       which the Commission has defined to include ". . . any means of actual
       working control over the operation of the [station] in whatever manner
       exercised." 

    9. Roberts also portends that he had no control over the illegal
       transmission of PCR. We disagree. Despite the post-NAL alterations to
       the PCR website, Roberts, as the operator of Pirate Cat Radio and the
       Pirate Cat Radio website, held himself out as the manager of Pirate
       Cat Radio and held Pirate Cat Radio out as a broadcast station, not
       just as a source of internet programming. Roberts solicited funds on
       the PCR website stating that "[d]onations go towards monthly station
       cost of running the FM transmitter and help Pirate Cat Radio buy new
       radio station equipment." Roberts also stated on the PCR website "that
       Title 47 Section 73.3542 of the U.S. Code of federal regulations
       currently allows Pirate Cat Radio 87.9fm to legally broadcast with out
       [sic] a formal licence [sic] from the FCC." In addition, in August
       2009, Roberts accepted a certificate from the San Francisco Board of
       Supervisors which recognized Pirate Cat for its "trailblazing efforts
       toward freeing the airwaves from corporate control, providing the
       community with training in radio broadcast skills, empowering voices
       ignored by traditional media outlets, and contributing to the
       advancement of the city's coffee culture."

   10. On October 31, 2009, Roberts admitted operation of PCR as an
       unlicensed radio broadcast station, when, in response to the NAL,
       Roberts issued a press release stating that "Pirate Cat Radio, a
       volunteer-run, community broadcasting organization operating out of
       the Pirate Cat Cafe in San Francisco's Mission district, has ceased
       its terrestrial broadcast on 87.9FM in response to the latest demands
       of the Federal Communications Commission." Concurrent with the
       issuance of Roberts' press release, broadcasts of PCR on 87.9 MHz in
       the San Francisco area did cease. Based on the evidence before us, for
       the purposes of section 301 of the Act, we find that Roberts operated
       Pirate Cat Radio without a license on 87.9 MHz in San Francisco,
       California, on April 28 and 29, 2009.

   11. Roberts also argues that he is unable to pay the proposed forfeiture
       amount. However, Roberts has failed to produce any documentation to
       support this request. As stated in the NAL, we "will not consider
       reducing or canceling a forfeiture in response to a claim of inability
       to pay unless the petitioner submits: (1) federal tax returns for the
       most recent three-year period; (2) financial statements prepared
       according to generally accepted accounting practices ("GAAP"); or (3)
       some other reliable and objective documentation that accurately
       reflects the petitioner's current financial status. Any claim of
       inability to pay must specifically identify the basis for the claim by
       reference to the financial documentation submitted." As Roberts failed
       to provide any basis or support for his claim of inability to pay the
       proposed forfeiture, we deny his request to reduce the proposed
       forfeiture.

   12. We have examined the 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 Roberts
       willfully and repeatedly violated section 301 of the Act. Considering
       the entire record and the factors listed above, we find that neither
       reduction nor cancellation of the proposed $10,000 forfeiture is
       warranted. Therefore, we affirm the NAL's finding that Roberts
       willfully and repeated violated section 301 of the Act, and assess a
       $10,000 forfeiture for that 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, 0.204,
       0.311 and 1.80(f)(4) of the Commission's Rules, Daniel K. Roberts
       a/k/a "Monkey Man" a/k/a "Monkey" IS LIABLE FOR A MONETARY FORFEITURE
       in the amount of $10,000 for willfully and repeatedly violating
       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
       Forfeiture Order. If the forfeiture is not paid within the period
       specified, the case may be referred to the Department of Justice for
       enforcement 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.  Daniel K. Roberts a/k/a "Monkey Man"
       a/k/a "Monkey" will also send electronic notification on the date said
       payment is made to WR-Response@fcc.gov.

   15. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by First Class Mail and by Certified Mail, Return Receipt
       Requested, to Daniel K. Roberts a/k/a "Monkey Man" a/k/a "Monkey" at
       his address of record; and to his counsel of record, Michael Couzens,
       6536 Telegraph Avenue, Suite 8201, Oakland, CA, 94609.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   See 47 U.S.C. S: 301.

   Subsequent to the issuance of the NAL, the PCR website made various
   changes and eliminated much of the language that evidenced PCR and
   Roberts' control of the PCR broadcasts on 87.9 MHz. The PCR broadcast on
   87.9 MHz also ceased.

   See, e.g., Notice of Unlicensed Operation to Daniel K. Roberts (San
   Francisco Office, March 7, 2006); Notice of Unlicensed Operation to Jason
   Seifert (San Francisco Office, April 20, 2006); Notice of Unlicensed
   Operation to Josh Goodwin (San Francisco Office, June 27, 2006); Notice of
   Unlicensed Operation to Alexander Ness (San Francisco Office, March 29,
   2007); On-Scene Notice of Unlicensed Operation (San Francisco Office,
   August 18, 2008).

   Section 15.239 of the Rules provides that non-licensed broadcasting in the
   88 to 108 MHz band is permitted only if the field strength of the
   transmission does not exceed 250 mV/m at three meters. See 47 C.F.R. S:
   15.239. Fundamental emissions from intentional radiators are not permitted
   in the band 76 to 88 MHz. See 47 C.F.R. S: 15.209(a). On April 28, 2009,
   the measurements indicated that the signal was more than 4,000 times
   greater than the maximum permissible level for a non-licensed Part 15
   transmitter in the 88 to 108 MHz band and more than 10,000 times greater
   than the maximum permissible level in the 76 to 88 MHz band. On April 29,
   2009, the measurements indicated that the signal was more than 3,000 times
   greater than the maximum permissible level for a non-licensed Part 15
   transmitter in the 88 to 108 MHz band and more than 8,000 times greater
   than the maximum permissible level in the 76 to 88 MHz band.

   See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
   200932960004 (Enf. Bur., Western Region, San Francisco Office rel. Aug.
   31, 2009); 47 U.S.C. S: 301.

   See Response of Daniel K. Roberts, filed October 23, 2009 ("Response").

   See 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 C.F.R. S: 1.80.

   See 47 U.S.C. S: 503(b)(2)(E).

   See 47 U.S.C. S: 301.

   47 U.S.C. S: 153(33).

   See 47 U.S.C. S: 301.

   Response at 1.

   Id., Roberts Affidavit at 3.

   Id.

   Id.

   See 47 U.S.C. S: 301.

   See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
   (comparing the use of the words "operate" and "operation" in sections 301,
   307 and 318 of the Act, and concluding that the word "operate" as used in
   section 301 of the Act means both the technical operation of the station
   as well as the general conduct or management of the station).

   Id.

   See id. See also 47 U.S.C.  S: 307(c)(1).

   Revision of Rules and Policies for the Direct Broadcast Satellite Service,
   11 FCC Rcd 9712, 9747 (1995), aff'd sub nom. DIRECTV, Inc. v FCC, 110 F.3d
   816 (D.C. Cir 1997). See, e.g., Vicot Chery, Notice of Apparent Liability
   for Forfeiture, 25 FCC Rcd 14596 (Enf. Bur. 2010).

   See http://www.piratecatradio.com/about/php (last visited July 28, 2008)
   ("Pirate Cat is an unlicensed low powered community radio station,
   broadcasting on 87.9 megahertz.");
   http://articles.sfgate.com/2009-01-05/entertainment/17197051_1_pirate-radio-monkey-radio-station
   (last visited Nov. 8, 2010) ("Monkey has operated Pirate Cat Radio in
   various locations for 12 years and opened the cafe in March with a novel
   business plan. He oversees a staff of 52 disc jockeys who pay a $30
   monthly fee to do their air shifts, in addition to time they spend
   volunteering at the coffee shop, which is supposed to underwrite the radio
   station. . . . The FCC routinely writes him up for operating without a
   license. He pulls out the latest citation and field agent's business card.
   He submitted his most recent application for a license on one of the same
   napkins he used to give the guitarist his phone number. `I see these like
   fix-it tickets,' he says. On the station's Web site
   (www.piratecatradio.com), Monkey invokes President Bush's war on terror
   and a provision of federal regulations that allows for temporary licenses
   in the face of national emergencies. . . . He broadcasts at 87.9 on the FM
   dial with a beefy 1,200-watt signal currently booming his station as far
   south as Gilroy. He will be moving the secret location of his transmitter
   soon and expects his coverage to suffer. Changing transmitter sites is one
   of the occupational hazards of pirate radio. Pirate Cat Radio simulcasts
   in Los Angeles and Berlin, although Monkey allows that the Los Angeles
   transmitter covers only about a five-block radius in the Silver Lake
   neighborhood because of an interference issue raised by a Christian
   television station, and the Berlin simulcast happens only when his
   associates over there remember to turn on the equipment.");
   http://www.sfweekly.com/2010-05-26/news/the-radio-pirate-goes-legit/ (last
   visited Nov. 8, 2010) (SF Weekly article published May 26, 2010, about
   Roberts' history since 2003 as a pirate radio broadcaster).

   http://www.piratecatradio.com (last visited Oct. 29, 2009).

   http://www.piratecatradio.com/about/php (visited July 28, 2008, and Nov.
   3, 2009). See
   http://web.archive.org/web/20080512012346/http://www.piratecatradio.com/about.php#leg
   (last visited Aug. 16, 2010). As stated in the NAL, the PCR website also
   mistakenly claimed its unlicensed operation is sanctioned by section
   73.3542 of the Rules, 47 C.F.R. S: 73.3542. We note that authority to
   operate pursuant to section 73.3542 must be granted by the FCC, and that
   the burden is on the applicant to show the required "extraordinary
   circumstances" to support such a grant. See  A-O Broadcasting Corporation,
   Memorandum Opinion and Order, 23 FCC Rcd 603, 614 (2008). There is no
   record that Roberts and PCR have ever received such a grant of authority
   from the Commission. Additionally, the frequency used without authority by
   Roberts and PCR is 87.9 MHz, which is not allocated to the FM broadcast
   band. See 47 C.F.R. S: 73.201.

   http://www.sfweekly.com/content/printVersion/1993091/ (last visited Nov.
   8, 2010). See also http://www.radiosurvivor.com/tag/san-francisco/ (last
   visited Aug. 16, 2010).

   http://www.piratecatradio.com/wordpress/?p=14816 (last visited Nov. 3,
   2009). See http://missionmission.wordpress.com/ (last visited Aug. 16,
   2010) (press release issued by Pirate Cat Radio on October 31, 2009). In
   that press release, Pirate Cat Radio stated that it ceased its terrestrial
   broadcast on 87.9FM in response to the FCC's proposed $10,000 fine for
   violating Section 301 of the Act, effectively ending PCR's 13-year run on
   the air. The press release also stated that "PCR can continue as an
   internet only station and the cafe/studio on 21stst will continue to
   operate, but at least for the time being, but it cannot safely broadcast
   over the terrestrial FM band without possibly jeopardizing its volunteers
   and supporters . . . ." The article concluded with a quote from Roberts,
   who stated: "we made a collective decision that Pirate Cat Radio must come
   off the public airwaves, until some method is found to change the law or
   get it authorized under existing law." See also
   http://www.missionmission.org/2009/11/02/pirate-cat-radio-fined-10k-and-ceases-fm-broadcast/
   (last visited Aug. 16, 2010).

   The foregoing facts also directly undercut Roberts' unconvincing and
   unsubstantiated assertion that the transmissions detected by the agents
   were probably third parties involved in airing internet streamed program
   service from PCR.

   NAL , P: 12.

   See 47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311,
   1.80(f)(4).

   See 47 U.S.C. S: 504(a).

   Federal Communications Commission DA 11-1756

   4

   2

   Federal Communications Commission DA 11-1756