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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.

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