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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Brian R. Ragan ) File No.: EB-FIELDWR-12-00000609
Licensee of Amateur Radio ) NAL/Acct. No.: 201232960001
Station KF6EGI
) FRN: 0014517353
Suisun City, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 2, 2012 Released: July 2, 2012
By the Senior Agent, San Francisco Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Brian R. Ragan, Licensee of Amateur Radio Station KF6EGI
in Suisun City, California, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
(Act), and apparently willfully violated Section 303(n) of the Act, by
operating an unlicensed radio transmitter on frequency 104.9 MHz, and
by failing to allow an inspection of his station by FCC personnel,
respectively. We conclude that Mr. Ragan is apparently liable for a
forfeiture in the amount of seventeen thousand dollars ($17,000). In
addition, we direct Mr. Ragan to submit, no later than thirty (30)
calendar days from the date of this NAL, a statement signed under
penalty of perjury stating that he no longer operates this
unauthorized station, and will make his amateur station available for
inspection.
II. BACKGROUND
2. On February 4, 2012, an agent from the Enforcement Bureau's San
Francisco Office (San Francisco Office) used direction-finding
techniques to locate the source of radio frequency transmissions on
frequency 104.9 MHz to Mr. Ragan's residence in Suisun City,
California. On February 25, 2012, San Francisco agents again used
direction-finding techniques to locate the source of the same
frequency after hearing the unlicensed station identifying itself over
the air as "KBRS." The agents determined that the signals on
frequency 104.9 MHz exceeded the limits for operation under Part 15 of
the Commission's rules (Rules), and therefore required a license.
Commission records showed no authorization issued to Mr. Ragan or to
anyone else for operation of a broadcast station on frequency 104.9
MHz in Suisun City, California. The agents heard the station operating
in the garage at the residence and attempted to inspect Mr. Ragan's
station, but he did not answer their knock at his door. The agents
posted a Notice of Unlicensed Operation (NOUO) at Mr. Ragan's front
door for operating an unlicensed FM broadcast station on the frequency
104.9 MHz in Suisun City, California. Before the agents left the
area of Mr. Ragan's residence, the operation ceased.
3. On February 27, 2012, Mr. Ragan contacted the San Francisco Office and
spoke to an agent concerning the NOUO that was posted at his door.
During his conversation with the agent, Mr. Ragan admitted to
operating the broadcast station on frequency 104.9 MHz for six months.
Mr. Ragan also stated that he was present at the time when the agents
were knocking at his door, but was afraid to answer the door because
he heard the agents say that they were with the FCC.
III. DISCUSSION
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Operation without Commission Authorization
5. 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. On
February 4 and February 25, 2012, Mr. Ragan operated an unlicensed
radio station on frequency 104.9 MHz from his residence. Mr. Ragan
admitted to operating the unlicensed radio station to a San Francisco
agent and acknowledged that the operation had been ongoing for six
months. A review of the Commission's records revealed that Mr. Ragan
did not have a license to operate a radio station on frequency 104.9
MHz at that location. Because Mr. Ragan, by his own admission,
consciously operated the station and did so on more than one day, the
apparent violations of the Act were both willful and repeated. Based
on the evidence before us, we find that Mr. Ragan apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment on frequency 104.9 MHz without the required
Commission authorization.
B. Licensee Failure to Comply With a Lawful Request for Inspection of
Station
6. Section 303(n) of the Act states that agents of the FCC have authority
to inspect all radio installations associated with stations required
to be licensed or authorized by the Act. On February 25, 2012, Mr.
Ragan refused to make his radio station available to a Commission
agent for inspection. On February 27, 2012, Mr. Ragan acknowledged to
a San Francisco agent that he was aware that the FCC was requesting an
inspection, but chose not to respond to the request. Mr. Ragan
possesses an FCC amateur radio license (KF6EGI), a Technician Class,
and has been licensed by the FCC since 2006. Mr. Ragan, as a licensed
amateur radio operator for at least six years, should be aware that
any radio equipment at his station must be made available for
inspection at any time when requested by the FCC, and also should be
aware of the proper operation of his amateur station in accordance
with the Rules. Because Mr. Ragan consciously failed to make his
radio station available to a Commission agent for inspection, we find
the apparent violation willful. Based on the evidence before us, we
find that, on February 25, 2012, Mr. Ragan apparently willfully
violated Section 303(n) of the Act by failing to allow an inspection
of his radio station and equipment.
C. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000, and the base forfeiture amount
for failure to permit inspection is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Ragan is apparently liable for a forfeiture in the amount of
seventeen thousand dollars ($17,000).
8. We further order Mr. Ragan to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by Mr.
Ragan, stating that he is in full compliance with Section 301and is no
longer engaged in the unauthorized operation on frequency 104.9 MHz or
any other frequency for which he has no license, and will make his
authorized amateur station available for inspection as required by the
Rules. This statement must be provided to the San Francisco Office at
the address listed in paragraph 11, below, within thirty (30) calendar
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
IV. ORDERING CLAUSES
9. 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, 0.314, and 1.80 of the Commission's rules, Brian R. Ragan is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seventeen thousand dollars ($17,000) for violations of
Sections 301 and 303(n) of the Act.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Brian R.
Ragan SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. IT IS FURTHER ORDERED that Brian R. Ragan SHALL SUBMIT a written
statement, as described in paragraph 8, above, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, San
Francisco Office, 5653 Stoneridge Dr., Suite 105, Pleasanton, CA,
94588. Mr. Ragan shall also e-mail the written statement to
WR-Response@fcc.gov.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Brian R. Ragan shall send electronic
notification of payment to WR-Response@fcc.gov. Regardless of the form
of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete the
wire transfer and ensure appropriate crediting of the wired funds, a
completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the
same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 3101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
14. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, San Francisco Office, 5653 Stoneridge Dr., Suite 105,
Pleasanton, CA, 94588, and include the NAL/Acct. No. referenced in the
caption. Brian R. Ragan also shall e-mail the written response to
WR-Response@fcc.gov.
15. The Commission 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.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and first class mail to Brian R. Ragan at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
David K. Hartshorn
Senior Agent
San Francisco Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 303(n).
See 47 C.F.R. S: 15.239. On February 25, 2012, the signal strength
measurement was more than 8,355 times greater than the maximum permissible
level.
Brian Ragan, On-Scene Notice of Unlicensed Operation (Enf. Bur. San
Francisco Office Feb. 25, 2012) (on file in EB-FIELDWR-12-00000609).
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
47 U.S.C. S: 303(n).
See 47 C.F.R. S: 97.103(c).
See 47 C.F.R. S: 97.103(a).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 503(b), 301, and 303(n); 47 C.F.R. S:S: 0.111, 0.204,
0.311, 0.314, 1.80
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3)
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1038
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Federal Communications Commission DA 12-1038