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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Glen Rubash ) File Number: EB-FIELDSCR-12-00004676
Licensee of Amateur Radio ) NAL/Acct. No.: 201332560002
Station KC0GPV
) FRN: 0002373934
Manhattan, Kansas
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 5, 2012 Released: December 5, 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 Glen Rubash, licensee of Amateur Radio Station KC0GPV in
Manhattan, Kansas, 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 88.3 MHz in
Manhattan, Kansas. We conclude that Mr. Rubash is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On September 26, 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 88.3 MHz to an FM transmitting antenna
mounted on a pole next to a residence in Manhattan, Kansas. The agents
determined that the signals on 88.3 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. Rubash or to anyone else for operation
of an FM broadcast station at or near this address.
3. On September 27, 2012, agents from the Kansas City Office again used
direction-finding techniques to confirm if the station was still
operating on 88.3 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 located in a locked
detached garage. The property owner stated that he allowed Mr. Rubash
to use the garage to operate the radio station and that he thought the
operation was legal because Mr. Rubash told him that he was a licensed
radio operator. Later that same day, Mr. Rubash spoke to an agent from
the Kansas City Office via telephone and confirmed that he was an
extra class amateur licensee (assigned call sign KC0GPV). Mr. Rubash
also admitted that he purchased the radio transmitter and that the
station had been on the air for two months. Mr. Rubash added that he
would not voluntarily relinquish the transmitter if asked to do so.
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. Rubash violated Section 301 of the Act. On
September 26 and 27, 2012, agents from the Kansas City Office
determined that an unlicensed station on the frequency 88.3 MHz
operated from a detached garage in Manhattan, Kansas. A review of the
Commission's records revealed that no license or authorization was
issued to anyone to operate a radio station on 88.3 MHz at this
location. Under Section 301, Mr. Rubash can be said to have "operated"
the unlicensed radio station on 88.3 MHz because the evidence shows
that Mr. Rubash exercised control over the general conduct or
management of the station. In this regard, Mr. Rubash secured space to
a residential garage specifically to house and operate the unlicensed
radio station; acknowledged owning the station's radio transmitting
equipment; and demonstrated control over it by stating that he would
refuse to surrender the equipment to the agents from the Kansas City
Office if required to do so. In addition, the property owner confirmed
that he specifically permitted Mr. Rubash to use the garage to operate
the radio station, which he presumed was lawful, given that Mr. Rubash
had told him that he was a licensed radio operator. Furthermore,
because Mr. Rubash is a licensed extra class amateur operator, he
presumably was aware (or should have been aware) that operation of the
radio transmitter required a license. The foregoing facts indicate
that Mr. Rubash consciously operated and/or otherwise was involved in
the general conduct or management of the unauthorized station. We
therefore conclude, based on the evidence before us, that Mr. Rubash
apparently willfully and repeatedly violated Section 301 of the Act by
operating radio transmission equipment without the required Commission
authorization.
B. Proposed Forfeiture Amount
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. 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. Rubash is apparently liable for a forfeiture in the amount of
$10,000.
IV. ORDERING CLAUSES
8. 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, Glen Rubash 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.
9. 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, Glen Rubash
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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. Glen Rubash 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.
11. 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.
12. 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. Glen Rubash also shall e-mail the written
response to SCR-Response@fcc.gov.
13. 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.
14. 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 Glen Rubash 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 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S: 15.239.
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 Damian Anthony Ojouku Allen, Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 7956 (Enf. Bur. 2012) (person renting space and
owning and removing transmitting equipment found to be operator).
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).
See Brian R. Ragan, Notice of Apparent Liability for Forfeiture and Order,
27 FCC Rcd 7331 (Enf. Bur. 2012) (imposing $10,000 forfeiture to amateur
licensee for operating an unlicensed broadcast radio station).
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 12-1948
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Federal Communications Commission DA 12-1948