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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                                         
                                                                  
                        )                                         
     In the Matter of       File Number: EB-FIELDSCR-12-00004683  
                        )                                         
     Thomas Costa           NAL/Acct. No.: 201332560001           
                        )                                         
     Iowa City, IA          FRN: 0022089429                       
                        )                                         
                                                                  
                        )                                         


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: October 19, 2012 Released: October 19, 2012

   By the District Director, Kansas City Office, South Central Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Thomas Costa apparently willfully and repeatedly violated Section
       301 of the Communications Act of 1934, as amended (Act), by operating
       an unlicensed radio transmitter on the frequency 87.9 MHz in Iowa
       City, Iowa. We conclude that Mr. Costa  is apparently liable for a
       forfeiture in the amount of ten thousand dollars ($10,000).

   II. BACKGROUND

    2. On September 17, 2012, in response to a complaint, agents from the
       Enforcement Bureau's Kansas City Office (Kansas City Office) used
       direction-finding techniques to locate the source of radio frequency
       transmissions on the frequency 87.9 MHz to an FM transmitting antenna
       mounted on a chimney of a residence in Iowa City, Iowa. The agents
       determined that the signals on 87.9 MHz exceeded the limits for
       operation under Part 15 of the Commission's rules (Rules), and
       therefore required a license. The Commission's records showed that no
       authorization was issued to Mr. Costa or to anyone else for operation
       of an FM broadcast station at or near this address.

    3. On September 18, 2012, agents from the Kansas City Office again used
       direction-finding techniques to confirm if the station was still
       operating on 87.9 MHz from the same location, and found that it was.
       The agents, accompanied by the property owner, inspected the
       unlicensed station's antenna and transmitter, which was located in a
       locked basement room in the Iowa City residence. The station was
       automated with a computer providing audio to a non-certified FM
       transmitter. The property owner stated that Mr. Costa rented the
       basement room housing the station. Later that day, the agents
       interviewed Mr. Costa, who admitted that he rented the basement room
       and installed the radio station equipment. Mr. Costa, however, denied
       operating the unlicensed station, and claimed that several unnamed
       individuals owned the equipment and gave him rent money each month
       which he, in turn, gave to the property owner to pay the rent. Mr.
       Costa asserted that the alleged operators of the station did not
       provide him with their names or contact information in order to
       protect him and them from the Commission. Mr. Costa also stated that
       he was told by the unnamed operators that he could expect the
       Commission to inspect the station at some point and order him to cease
       operations.

   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. Unlicensed Broadcast Operation

    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.
       For the purposes of Section 301, the word "operate" has been
       interpreted to mean both the technical operation of the station, as
       well as "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 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." 

    6. We find that the record evidence in this case is sufficient to
       establish that Mr. Costa violated Section 301 of the Act. On September
       17 and 18, 2012, agents from the Kansas City Office determined that an
       unlicensed station on the frequency 87.9 MHz operated from a basement
       room in a residence in Iowa City, Iowa. A review of the Commission's
       records revealed that no license or authorization was issued to anyone
       to operate a radio station on 87.9 MHz at this location. Under Section
       301, Mr. Costa can be said to have "operated" the unlicensed radio
       station on 87.9 MHz because the evidence shows that Mr. Costa
       exercised control over the general conduct or management of the
       station despite his claim that other individuals, who he refused to
       identify, were operating the station. In this regard, Mr. Costa
       admitted that he rented (and paid the monthly rental for) the locked
       basement room housing the unlicensed station, and that he installed
       the station equipment. Further, during the interview, Mr. Costa
       mentioned that he was warned about the unlawfulness of the operation
       by unnamed individuals, who told him that he could expect the
       Commission to inspect the station and order him to cease operations at
       some point. Assuming the statement to be true, it appears that, in
       spite of the warning, Mr. Costa nonetheless allowed the station to
       continue to operate in his basement. The foregoing facts indicate that
       Mr. Costa consciously operated and/or otherwise was involved in the
       general conduct or management of the unauthorized station.

    7. Although not critical to our determination that Mr. Costa violated
       Section 301, we do not find his claim persuasive that other
       individuals (and not he) operated the station. On this issue, Mr.
       Costa refused to provide the names and contact information of the
       (alleged) other individuals or to provide any other information to
       corroborate his claim. In addition, we find it implausible that Mr.
       Costa (or anyone for that matter) would install radio equipment, rent
       space, allow for unlawful operations in the rented space, and incur
       potential financial and other liability on behalf of complete
       strangers. We therefore conclude, based on the evidence before us,
       that Mr. Costa  apparently willfully and repeatedly violated Section
       301 of the Act by operating radio transmission equipment without the
       required Commission authorization. 

    B. Proposed Forfeiture Amount

    8. 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. 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. Costa is apparently liable for a forfeiture in the amount of
       $10,000.

   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, 0.311,
       0.314, and 1.80 of the Commission's rules, Thomas Costa is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of 
       ten thousand dollars ($10,000) for violations of Section 301 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, Thomas Costa
       SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
       written statement seeking reduction or cancellation of the proposed
       forfeiture.

   11. 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. Thomas Costa will also send electronic
       notification on the date said payment is made to SCR-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 63101. 

   12. 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.

   13. 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, South
       Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor,
       Lees Summit, Missouri  64086-4711, and include the NAL/Acct. No.
       referenced in the caption. Thomas Costa also shall e-mail the written
       response to SCR-Response@fcc.gov.

   14. 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.

   15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and First Class Mail to Thomas Costa at his address of
       record. 

   FEDERAL COMMUNICATIONS COMMISSION

   Ronald D. Ramage

   District Director

   Kansas City Office

   South Central Region

   Enforcement Bureau

   47 U.S.C. S:301.

   Part 15 of the Rules sets out the conditions and technical requirements
   under which certain radio transmission devices may be used without a
   license. In relevant part, Section 15.209 of the Rules provides that
   non-licensed broadcasting in the 30-88 MHz band is permitted only if the
   field strength of the transmission does not exceed 100 mV/m at three
   meters. 47 C.F.R. S: 15.209.

   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.

   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.

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

   See Revision of Rules and Policies for the Direct Broadcast Satellite
   Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v.
   FCC, 110 F.3d 816 (D.C. Cir. 1997).

   See Durrant Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC
   Rcd 6982 (Enf. Bur. 2011) (finding the fact that someone else may have
   been involved in the operation of unlicensed station does not lessen
   culpability). 

   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:  301, 503(b); 47 C.F.R. S:S: 0.111, 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).

   Federal Communications Commission DA 12-1686

                                       2

   Federal Communications Commission DA 12-1686