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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-09-LA-0026
Kevin W. Bondy
) NAL/Acct. No.: 200932900004
Licensee of Station WQGX752
) FRN: 0016490633
Encino, California
)
))
FORFEITURE ORDER
Adopted: June 2, 2011 Released: June 6, 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 twenty-four thousand dollars ($24,000) to Kevin W. Bondy
("Bondy"), licensee of General Mobile Radio Service ("GMRS") Station
WQGX752, in Encino, California, for willful and repeated violation of
sections 301 and 333 of the Communications Act of 1934, as amended
("Act"), and section 95.183(a)(5) of the Commission's rules ("Rules"),
and for willful violation of section 303(n) of the Act, and section
95.115 of the Rules, for engaging in unlicensed radio operation and
intentional interference to licensed radio operations, and for
refusing to allow an inspection of his radio equipment by FCC
personnel.
II. BACKGROUND
2. On February 25, 2009, the Los Angeles Office of the Enforcement Bureau
("Bureau") received a complaint of interference from the security
manager for The Oaks Shopping Center ("The Oaks" or "the shopping
center"), located at 350 West Hillcrest Drive, Thousand Oaks,
California. The Oaks is the licensee of land mobile radio Station
KOA995, with authority to operate on 461.375 MHz, 462.525 MHz, and
467.525 MHz. The Oaks is also the licensee of land mobile radio
Station KG9712, with authority to operate on 466.375 MHz.
3. The next day, an agent from the Los Angeles Office contacted the
security manager regarding the complaint. The security manager stated
that an unknown individual was intentionally interfering with the
shopping center's maintenance operations on 462.525 MHz and 467.525
MHz and its security operations on 461.375 MHz and 466.375 MHz. The
security manager also stated that this person was harassing store
employees and patrons at The Oaks. According to the security manager,
the person in question told The Oaks's personnel to stop using
461.375MHz, the shopping center's security repeater input frequency.
4. On March 5, 2009, using direction-finding techniques, the Los Angeles
agent located an unlicensed and unauthorized repeater transmitter in a
secured radio communications facility on Oat Mountain in the Santa
Susana Mountains. The agent observed pulsating signals on 461.375 MHz
and 466.375 MHz emanating from the repeater transmitter and also
observed a beam antenna pointed in the direction of The Oaks.
5. On March 6, 2009, in an effort to locate the point of origin of the
transmission from the unlicensed and unauthorized repeater, the agent
again monitored 461.375 MHz and 466.375 MHz in the vicinity of The
Oaks and observed pulsating signals that interfered with the normal
transmissions on those frequencies. Later that day, in consultation
with personnel from The Oaks and the Ventura County Sheriff's
Department, the Los Angeles agent used direction-finding techniques to
locate the source of the transmissions while personnel from The Oaks
spoke to the as yet unidentified subject on 464.7125 MHz and 462.8375
MHz. During the time The Oaks personnel engaged in radio
communications with the subject, he acknowledged he was intentionally
interfering with The Oaks's ability to communicate on 461.375 MHz and
466.375 MHz, in order to render The Oaks's repeater unusable and to
force The Oaks off their licensed channels. Specifically, the subject
told The Oaks personnel that they had "plenty of warning." The subject
then effectively shut down all operations on The Oaks frequencies by
transmitting NOAA weather radio over every channel, and told The Oaks
personnel that he had been "jamming" the 461.375 MHz and 466.375
frequencies by "pulsing" them to shut down the repeater. The subject
also said that The Oaks now had no repeaters, that The Oaks had to
stop using the 461.375 MHz and 466.375 MHz repeater pair, and that The
Oaks had to apply to the FCC to cancel the 461.375 MHz and 466.375 MHz
repeater pair and request a new frequency pair. The subject said to
The Oaks personnel that he gave The Oaks three weeks to vacate the
frequencies but The Oaks did not do so, so "this is what [it has] come
to." The subject then explained in detail to The Oaks personnel how to
work with the FCC and frequency coordinators to apply for a new
frequency for its license.
6. At approximately 7:30 p.m. the same day, the Los Angeles agent located
the transmitter originating the voice transmissions on 464.7125 MHz
and 462.8375 MHz (the frequencies being used by The Oaks and the still
unidentified subject to communicate) to a vehicle located on the
National Park Service parking structure across the street from The
Oaks. The Ventura County Sheriff's Department then secured the area
and identified the subject as Kevin Bondy. The Los Angeles agent
identified himself to Bondy and explained that a refusal to allow an
inspection could result in a fine. Then the agent asked Bondy if the
agent could perform an inspection of all radios in his vehicle.
Initially, Bondy refused to allow an inspection, then a few minutes
later, agreed to allow an inspection, then refused again after the Los
Angeles agent began inspecting all of the radio equipment that Bondy
had in his vehicle. Bondy's refusal was witnessed by Ventura County
Sheriff's Department deputies.
7. On March 9, 2009, the Los Angeles agent revisited the radio
communications facility on Oat Mountain and observed that the beam
antenna had been removed and the interference to The Oaks radio
systems had ceased.
8. On May 14, 2009, the Los Angeles Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $24,000 to Bondy,
finding that Bondy apparently willfully and repeatedly violated
sections 301 and 333 of the Act, and section 95.183(a)(5) of the
Rules, by engaging in unlicensed radio operation and intentional
interference to licensed radio operations, and apparently willfully
violated section 303(n) of the Act and section 95.115 of the Rules by
failing to allow an inspection of his radio equipment by Commission
personnel. After being granted an extension by the Los Angeles Office,
Bondy filed a response on August 21, 2009, arguing that he did not
commit the violations, that he did not refuse to allow the inspection,
and that he lacks the ability to pay the proposed forfeiture amount.
III. DISCUSSION
9. 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 the 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.
10. Section 301 of the Act states that "[n]o person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio ... except under and in accordance with this Act and
with a license in that behalf granted under the provisions of this
Act." Although Bondy is a GMRS licensee under Part 95 of the Rules, he
has no authorization to operate on 461.375 MHz and 466.375 MHz, the
frequencies licensed to The Oaks, or 464.7125 MHz and 462.8375 MHz,
the frequencies that the Los Angeles agent located Bondy transmitting
on during the investigation on March 6, 2009. In his Response, Bondy
denies transmitting on 464.7125 MHz and 462.8375 MHz and denies
ordering anyone to stop transmitting on 461.375 MHz and 466.375 MHz.
Bondy argues that this is simply a case of mistaken identity. Bondy
also argues that he did not own or operate any equipment on Oat
Mountain, including the unauthorized repeater the Los Angeles agent
found. We find no merit in Bondy's arguments.
11. The Los Angeles agent used direction-finding techniques to locate
Bondy as he transmitted on 464.7125 MHz and 462.8375 MHz on March 6,
2009. The agent successfully located the initiating transmissions to a
vehicle located at the parking structure near The Oaks in which Bondy
was operating. Bondy was then identified by a Ventura County police
officer, a fact that Bondy does not dispute. While the Los Angeles
agent was attempting to locate Bondy, The Oaks personnel recorded
their transmissions with Bondy in which Bondy ordered them to vacate
461.375 MHz and 466.375 MHz while he was transmitting on 464.7125 MHz
and 462.8375 MHz. Bondy stated in his transmissions to The Oaks
personnel, that he had been jamming the frequencies, 461.375 MHz and
466.375 MHz, and that The Oaks had to stop using those frequencies. We
are persuaded that the evidence presented by the Los Angeles agent,
including the agent's direction-finding that located the transmissions
to Bondy and the recording of Bondy's transmissions outweighs Bondy's
unsupported assertions of mistaken identity. Accordingly, we find that
Bondy willfully and repeatedly violated section 301 of the Act by
consciously and deliberately operating on frequencies for which he had
no authorization, for more than one day.
12. Section 333 of the Act states that "[n]o person shall willfully or
maliciously interfere with or cause interference to any radio
communications of any station licensed or authorized by or under the
Act or operated by the United States government." Section 95.183(a)(5)
of the Rules states that a GMRS station operator must not communicate
intentional interference. On March 6, 2009, Bondy acknowledged during
his transmissions that he was causing intentional interference to The
Oaks's authorized operations on 461.375 MHz and 466.375 MHz, in a
successful effort to render The Oaks's repeater unusable and to force
The Oaks off its licensed channels. Nevertheless, in his Response
Bondy denies that he was causing interference and again argues that
the investigation resulted in a case of mistaken identity. As
described above, while the Los Angeles agent sought to locate Bondy
and located the transmissions on 464.7125 MHz and 462.8375 MHz to
Bondy's vehicle, The Oaks personnel recorded their transmissions with
Bondy in which he ordered The Oaks to vacate their licensed spectrum.
Bondy stated in his transmissions to The Oaks personnel, that he had
been jamming the frequencies, 461.375 MHz and 466.375 MHz, and that
The Oaks had to stop using those frequencies. Therefore, we again find
no merit to Bondy's argument that the investigation was a case of
mistaken identity.
13. Bondy also argues that he did not transmit NOAA weather radio on all
frequencies used by The Oaks, asserting that none of his radios
contained any frequencies used by The Oaks, and he did not have a
radio which received NOAA weather transmissions. Although Bondy states
that none of his radios contained any frequencies used by The Oaks,
the Los Angeles agent used direction-finding equipment to locate Bondy
by monitoring the frequencies Bondy was transmitting on, which were
also being used by The Oaks, specifically, 464.7125 MHz and 462.8375
MHz. Consequently, we decline to believe Bondy's claims concerning the
frequencies programmed into his radios. Accordingly, we find that
Bondy willfully and repeatedly violated section 333 of the Act, and
section 95.183(a)(5) of the Rules by consciously and deliberately
causing interference to The Oaks's licensed transmissions on 461.375
MHz and 466.375 MHz for more than one day.
14. Section 303(n) of the Act states "the Commission . . . shall have
authority to inspect all radio installations . . . ." Section 95.115
of the Rules states that "[i]f an authorized FCC representative
requests to inspect any station in a GMRS system, the licensee or
station operator must make the station available." On March 6, 2009,
an agent from the Los Angeles Office requested an inspection of
Bondy's radio equipment. Bondy argues that he did not refuse an
inspection by the Los Angeles agent, although he acknowledges that he
initially told the agent that he preferred that the agent not look at
his radios, but ultimately allowed the inspection. The Los Angeles
agent reported that Bondy initially refused an inspection, then
agreed, then refused a full inspection. According to Bondy, the agent
was specifically focused on one of Bondy's handheld radios to
determine which frequencies were programmed into the device, which was
not readily apparent given that Bondy had programmed channel names,
rather than frequencies, into the handheld. Conversely, the agent
reported that there were other radios in the car which he was unable
to inspect, including a console mount radio, a handheld radio, and a
mobile radio unit in the back seat. Bondy acknowledges that he was
apprehensive about the inspection and asserts that he informed the
agent that his actions, including attempting to program a frequency
into the radio after Bondy told the agent that the radio was field
programmable, were not necessary.
15. Although the Los Angeles agent attempted an inspection of Bondy's
radio equipment and was allowed to begin to inspect a single handheld
device, the agent's attempt to determine the actual frequency
programmed into the handheld device was thwarted by Bondy, and Bondy
indicated to the agent that he could not conduct a full and complete
inspection of all of the radio equipment in the vehicle. We conclude
that while Bondy may have allowed the inspection of a handheld radio,
he apparently did not permit inspection of the rest of the radio
equipment in his vehicle. The ability of an FCC agent to conduct an
inspection pursuant to section 303(n) of the Act, and in this case,
pursuant to section 95.115 of the Rules, is a crucial investigative
tool for our enforcement purposes. When a subject disallows such an
inspection, it severely undermines a field agent's ability to perform
his or her job. Consequently, we find that Bondy willfully failed to
allow an inspection of his radio equipment. Accordingly, we find that
Bondy willfully violated section 303(n) of the Act and section 95.115
of the Rules by consciously and deliberately refusing to allow an FCC
agent to inspect his radio equipment.
16. Bondy also claims that he lacks the ability to pay the proposed
$24,000 forfeiture and submits three years of tax records to support
his claim. As indicated above, section 503(b)(2)(E) of the Act states
that in determining the amount of a forfeiture penalty, the Commission
shall 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. We have reviewed Bondy's tax
records, which, standing alone may arguably support his asserted
inability to pay argument. However, the ability to pay a forfeiture is
just one of the criteria we must consider when determining the
appropriate forfeiture penalty for violations of the Act and the
Rules. As required by the statute itself, we must consider the nature,
circumstances, extent, and gravity of the violation. Here, Bondy's
violations include repeated acts of intentional and malicious
interference designed to jam the operations of stations licensed by
the Commission. The Commission is responsible for making and enforcing
regulations to prevent interference and to maintain control over the
use of the radio spectrum in a manner that promotes the public
interest and convenience. Bondy's acts cut at the heart of the
Commission's responsibilities to protect the nation's airwaves and
regulate use of the spectrum. Bondy operated a radio without a license
on the specific frequencies assigned and licensed by the Commission to
The Oaks, for the explicit and expressed purpose of prohibiting The
Oaks's use of its licensed frequencies. This type of conduct inhibits
the Commission's ability to effectively regulate and maintain control
over the use of the spectrum and will not be tolerated. Indeed,
Congress enacted section 333 of the Act specifically to provide the
Commission with explicit authority to deal with willful or malicious
interference. The egregiousness of Bondy's willful acts of malicious
interference warrant assessment of the full forfeiture amount
proposed. Nothing on the record in this case, including Bondy's
ability to pay, warrants any leniency or mitigation of that amount.
17. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy Statement
and section 1.80 of the Rules. As a result of our review, we conclude
that Bondy willfully and repeatedly violated sections 301 and 333 of
the Act, and section 95.183(a)(5) of the Rules, and willfully violated
section 303(n) of the Act, and section 95.115 of the Rules.
Considering the entire record and the factors listed above, we find
that Bondy is liable for a forfeiture in the amount of $24,000.
IV. ORDERING CLAUSES
18. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended ("Act"), and sections 0.111,
0.204, 0.311 and 1.80(f)(4) of the Rules, we find that Kevin Bondy IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $24,000 for
willfully and repeatedly violating sections 301 and 333 of the Act,
and section 95.183(a)(5) of the Rules, and for willfully violating
section 303(n) of the Act and section 95.115 of the Rules.
19. 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 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.
Kevin Bondy shall also send electronic notification to
WR-Response@fcc.gov on the date said payment is made.
20. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Kevin Bondy
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S:S: 301, 333.
47 C.F.R. S: 95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
We note that The Oaks had no authorization to operate on 464.7125 MHz and
462.8375 MHz. However, they used those frequencies in this limited
instance to communicate with the subject, and other personnel, because of
the continual jamming of their authorized frequencies, and to allow the
Los Angeles agent to track the transmissions and locate them to the source
of the subject who was communicating with The Oaks. The agent ultimately
located the transmissions to Bondy's vehicle.
The agent observed that the vehicle contained a console mount radio,
another handheld radio, and a mobile radio unit in the back seat. The
agent was not able to inspect any of these devices because of Bondy's
refusal.
47 C.F.R. S: 95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932900004
(Enf. Bur. Western Region, Los Angeles Office, released May 14, 2009).
See Response to Notice of Apparent Liability for Forfeiture by Kevin W.
Bondy, filed August 21, 2009 ("Response").
See Response at 1 - 3.
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.
Under Part 95 of the Rules, the frequencies 461.375 MHz, 466.375 MHz,
464.7125 MHz, and 462.8375 MHz, are not available for GMRS operation. See
47 C.F.R. S: 95.29 (Channels available).
See Response at 1 - 3.
See Response at 1.
47 U.S.C. S: 333.
47 C.F.R. S: 95.183(a)(5).
See Response at 3.
See Response at 1.
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
See Response at 1 - 2.
See NAL at para 7, n.7.
See Response at 2.
47 U.S.C. S: 503(b)(2)(E).
Id.
The frequencies being jammed by Bondy's interference were 461.375 MHz,
authorized for use by The Oaks' license for Station KOA995, and 466.375
MHz, authorized for use by The Oaks's license for Station KG9712.
47 U.S.C. S:S: 301, 303(f), 333.
H.R. Rep. No. 101-316, at 13 (1989). The legislative history for section
333 identifies willful and malicious interference as "intentional jamming,
deliberate transmission on top of the transmissions of authorized users
already using specific frequencies in order to obstruct their
communications, repeated interruptions, and the use and transmission of
whistles, tapes, records, or other types of noisemaking devices to
interfere with the communications or radio signals of other stations."
See Hodson Broadcasting Corporation, Forfeiture Order, 24 FCC Rcd 13699
(Enf. Bur. 2009) (permittee's continued operation at variance with its
construction permit constituted an intentional and continuous violation,
which outweighed permittee's evidence concerning its ability to pay the
proposed forfeitures).
47 U.S.C. S:S: 301, 333.
47 C.F.R. S:95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
47 U.S.C. S:S: 301, 303(n), 333, 503(b); 47 C.F.R. S:S: 0.111, 0.204,
0.311, 1.80(f)(4), 95.115, 95.183(a)(5).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-990
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Federal Communications Commission DA 11-990