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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Joaquim Barbosa ) File Number: EB-08-NY-034
Licensee of Amateur Radio Station ) NAL/Acct. No. 200832380005
N2KBJ,
) FRN 0017458753
Elizabeth, New Jersey
)
)
Forfeiture Order
Adopted: December 11, 2012 Released: December 11, 2012
By the Regional Director, Northeast Region, Enforcement Bureau:
I. Introduction
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of sixteen thousand dollars ($16,000) to Joaquim Barbosa, licensee of
amateur radio station N2KBJ, in Elizabeth, New Jersey, for willfully
and repeatedly violating Section 301 of the Communications Act of
1934, as amended (Act), by operating a radio transmitting equipment on
the frequency 296.550 MHz without Commission authorization. As
discussed below, we deny Mr. Barbosa's request for cancellation of the
forfeiture, but grant, in part, his request for reduction.
II. Background
2. As reflected in the Notice of Apparent Liability (NAL) issued in this
case, the Commission received a complaint from an authorized United
States (U.S.) government user that it was receiving harmful radio
interference from an unauthorized station operating on the frequency
296.550 MHz-a frequency limited to U.S. military operations-in the
Elizabeth, New Jersey area. Agents from the Enforcement Bureau's New
York Field Office responded to the complaint and, using mobile
direction-finding techniques on February 6, 7, and 11, 2008,
determined that the source of the transmissions was emanating from a
residential home owned by Mr. Barbosa.
3. On February 11, 2008, the agents, accompanied by Mr. Barbosa,
conducted an inspection of the unauthorized station at the residence.
During the inspection, the agents directly observed a transceiver
whose display showed that it was set to transmit frequency on 296.550
MHz. The agents also observed that the transmitter was connected to an
antenna mounted on the back of the house. During the interview, Mr.
Barbosa admitted to operating the station and the transmitting
equipment for at least four months, and confirmed that he owned the
equipment. Mr. Barbosa, who is licensed by the FCC as an Amateur Extra
Class licensee (the highest level class), acknowledged knowing that
the frequency 296.550 MHz was not a U.S. frequency authorized for use
by amateur licensees and confirmed that he did not have a license to
operate on the frequency. The agents advised Mr. Barbosa of the
violation and issued him a Notice of Unlicensed Operation (NOUO).
4. Following the inspection, on February 26, 2008, the Bureau issued the
NAL, which found Mr. Barbosa in violation of Section 301 of the Act
for willfully and repeatedly operating a radio transmission apparatus
on the frequency 296.550 MHz without Commission authorization. In the
NAL, the Bureau proposed a $20,000 monetary forfeiture for the
violation, which included a $10,000 upward adjustment mainly because
of the egregiousness of the violation.
5. On March 25, 2008, Mr. Barbosa filed a response to the NAL, requesting
cancellation or, in the alternative, a reduction of the forfeiture. In
his response, Mr. Barbosa acknowledges that he did, in fact, operate a
radio transceiver on the frequency 296.550 MHz without a license. He
contends, however, that cancellation or a substantial reduction of the
proposed $20,000 forfeiture is warranted nonetheless for several
reasons: (1) he reasonably believed that he had authority to operate
on the frequency 296.550 MHz; (2) his constitutional rights were
violated; (3) the unlicensed operation did not cause harm or
interference; (4) the forfeiture amount is not supported by case
precedent; and (5) that there are other factors-such as his
cooperation with the investigation, inability to pay, and prior
history of overall compliance with the rules-that, when considered,
justify cancellation or a reduction of the forfeiture. We address
below each of these issues in turn.
III. Discussion
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Commission's rules
(Rules), and the Forfeiture Policy Statement. In examining Mr.
Barbosa's response, 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. As discussed below, we have
fully considered Mr. Barbosa's response to the NAL in light of these
statutory factors and find that cancellation of the forfeiture is not
warranted; however, we find that some reduction of the forfeiture is
justified based on his overall history of compliance with the rules
prior to the investigation.
A. Mr. Barbosa Engaged in Unlicensed Operation
7. We affirm the NAL's finding that Mr. Barbosa willfully and repeatedly
violated Section 301 of the Act. It is undisputed that Mr. Barbosa
operated a radio transmitter without an FCC license on the frequency
296.550 MHz-a frequency authorized exclusively for Federal Government
use in the United States-in violation of Section 301. In this regard,
Mr. Barbosa states that he "truthfully acknowledged to the FCC agent
who conducted the enforcement visit on February 11, 2008[,] that he
did operate a transceiver on 296.550 MHz." Notwithstanding the
admission, Mr. Barbosa contends that cancellation or forfeiture
reduction is warranted because he reasonably believed that he
otherwise had authority to operate the radio transmitting equipment
using the frequency 296.550 MHz. Mr. Barbosa explains that his
authority is not based on his status as an amateur licensee (which he
readily acknowledges does not authorize him to operate on the U.S.
government frequency), but based on the authority vested in him by a
Brazilian man, who is authorized to operate the radio equipment using
the frequency 296.550 MHz in Brazil. Mr. Barbosa states: "the
frequency was one [I] knew to be an authorized Brazilian frequency for
satellite communications and that [I] was operating on that frequency
in compliance with a Brazilian permit as authorized by the Brazilian
permit holder." Mr. Barbosa further states that the Brazilian man who
gave him the radio as a "gift[ ]" was a licensee under Brazilian
authority, and that this individual showed him the Brazilian
authorization and granted him permission to operate under his license
to use the frequency. He argues that, as such, he "honestly believed"
that the "master authorization" he was shown authorized him to operate
the radio using the frequency at issue and, therefore, he should not
be penalized for relying on that information.
8. We find Mr. Barbosa's arguments unavailing. Even assuming for the sake
of argument that Mr. Barbosa is authorized to operate the radio
equipment under Brazilian authority, he is not authorized to operate
any such equipment in the United States without Commission
authorization and, therefore, is still in violation of Section 301 of
the Act. We emphasize that Section 301 makes clear that operation of
any radio station within the United States requires FCC authorization,
which Mr. Barbosa did not have. We also find unpersuasive Mr.
Barbosa's suggestion that the violation should be excused because he
reasonably believed that he was authorized to operate the radio
transmitter using the frequency 296.550 based on the Brazilian license
held by the individual who gave him the radio. It is well established
that the Commission does not consider ignorance of the law or even
reliance on erroneous or misleading advice or information from third
parties about licensing requirements as mitigating circumstances that
can justify cancellation or reduction of a forfeiture; and we see no
reason to depart from that long-established policy in this case.
9. We also remain unconvinced that Mr. Barbosa did not knowingly violate
the Commission's rules, especially given his status as an Amateur
Extra Class licensee, the highest amateur license class. Based on the
examination process involved in pursuing an amateur license, amateur
licensees are expected to have an understanding of radio operations
and pertinent FCC regulations, including Part 97 of the FCC's Rules
governing the Amateur Radio Service. Licensed amateur operators know
that they are authorized to operate only on the frequencies listed in
Section 97.301 of the Rules, as designated by their operator class and
license. Pursuant to the Table of Allocations, the 267-322 MHz
Band-the band that Mr. Barbosa was operating in-is allocated solely
for Federal Government use, which we continue to believe Mr. Barbosa
knew (or should have known) was not authorized for non-government use.
A. The FCC's Inspection Did Not Violate Mr. Barbosa's Constitutional
Rights
10. The FCC's inspection of Mr. Barbosa's radio equipment was warranted,
given that Mr. Barbosa's unauthorized use of the frequency 296.550 MHz
was believed (and later confirmed) to be the source of harmful
interference with a government communications system. In his response
to the NAL, Mr. Barbosa argues that his constitutional rights under
the Fourth and Fifth Amendments were violated because the FCC agents
conducted a search of his home on February 11, 2008 without a warrant,
entered his home without his consent, and subjected him to an unlawful
interrogation without the benefit of Miranda warnings.
11. We find no merit in Mr. Barbosa's arguments. First, the FCC inspection
was not a criminal investigation, thereby making much of Mr. Barbosa's
constitutional claims (such as the need for Miranda warnings)
inapplicable. Second, the inspection was authorized under Section
303(n) of the Act, which states that the Commission has the "authority
to inspect all radio installations associated with stations required
to be licensed by any Act, or which the Commission by rule has
authorized to operate without a license under section 307(e)(1)." FCC
agents are not required to obtain a warrant prior to conducting a
radio station inspection. Third, as a licensed amateur radio operator
for more than 13 years, Mr. Barbosa knew or should have known that any
radio equipment at his station must be made available for inspection
at any time when requested by the FCC, and that his cooperation and
truthful responses during an inspection are expected. Finally, we find
nothing in the record in this case to support Mr. Barbosa's suggestion
that the agents conducted themselves in an improper manner. Indeed,
even Mr. Barbosa confirms (in his response to the NAL) that the agents
took the following actions during the inspection (none of which we
find inappropriate): the FCC agents knocked on the door of his home,
identified themselves as federal agents, showed him government
identification, and handed him an FCC business card during the
inspection; that he and his son led the agents inside and outside
their home so that the agents could inspect the radio equipment and
antenna; that the agents took photographs of the equipment and asked
him questions concerning his operations; and that, at the end of the
inspection, the agents handed him a "Notice of Unlicensed Radio
Operation" that was signed by one of the agents. Based on all the
foregoing, we find that the inspection conducted by the agents was
lawful and appropriate, and that Mr. Barbosa's constitutional rights
were not violated.
C. The Unlicensed Operation Caused Harmful Interference
12. Mr. Barbosa also argues that the forfeiture should be reduced because
there is no evidence of actual interference or harm. With respect to
the record evidence, Mr. Barbosa is incorrect. The investigation in
this case commenced specifically because an authorized U.S. government
user reported harmful radio interference to its communications system.
It is self-evident that an unlicensed operation on unauthorized
frequencies disrupts the operations of authorized licensees and often
results in interference to authorized services. The fact that Mr.
Barbosa's unauthorized use of the frequency was obstructing and
interfering with government communications was sufficient to
characterize the interference as harmful. We also believe that any
interference to any U.S. government user is serious because of the
potential harm to the public's safety and security. Furthermore, even
if there was no finding of interference or harm, Mr. Barbosa still
would not be entitled to a forfeiture reduction. It is fairly
established that the absence of interference or the showing of any
harm to the public does not, under the Forfeiture Policy Statement or
Section 1.80(b), warrant a downward adjustment of the forfeiture.
D. The Proposed Forfeiture Amount Was Supported by Case Precedent
13. Contrary to Mr. Barbosa's assertion, the NAL's proposed $20,000
forfeiture amount, which included a $10,000 upward adjustment, is
supported by case precedent. In Raimundo P. Silva, the Bureau also
issued a $20,000 forfeiture against an amateur licensee who admitted
to operating radio equipment in the frequency band reserved for
federal government use without a license for several months, but
asserted (like Mr. Barbosa does here) that he was unaware that his
unauthorized radio transmissions interfered with the federal
government users' authorized operations. The Bureau found Mr. Silva's
apparent willful and repeated unlicensed and unauthorized radio
operation in the restricted federal government band "egregious,"
justifying a significant upward adjustment in the amount of $10,000.
Because the violation here is equally egregious, we find the $10,000
upward adjustment in this case to be consistent with prior cases and
justified.
E. Cooperation, Inability to Pay, and History of Overall Compliance
14. Mr. Barbosa also suggests that the forfeiture amount merits some
reduction because he was cooperative with the FCC agents during the
inspection and because he has been truthful in his responses to the
Commission. While we appreciate Mr. Barbosa's conduct in this
investigation, Mr. Barbosa's cooperative conduct is not a basis to
justify a forfeiture reduction. The Commission expects all licensees
to cooperate with its investigations and to provide truthful responses
to any questions.
15. Although Mr. Barbosa is a "micro" business owner, he also contends
that the forfeiture amount would present "a significant hardship" and,
therefore, should be canceled or reduced. Mr. Barbosa, however, did
not provide any financial documents to support his request. With
respect to a claim of financial hardship, the Commission will not
consider canceling or reducing a forfeiture in response to an
inability to pay claim, unless the individual or entity making the
request submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared according to
generally accepted accounting principles (GAAP); or (3) some other
reliable and objective documentation that accurately reflects the
individual's or entity's current financial status. Also, any claim of
inability to pay must specifically identify the basis for the claim by
reference to the financial documentation submitted. Here, because Mr.
Barbosa did not provide any financial or other documentation to
support or corroborate his asserted financial status, we have no basis
by which to evaluate Mr. Barbosa's inability to pay claim and,
therefore, must deny the request.
16. Finally, Mr. Barbosa asserts that the proposed forfeiture amount
should be reduced because of his overall history of compliance with
the laws, including the Commission's rules. We agree that a reduction
of the forfeiture amount is warranted based on our review of the
record and finding that Mr. Barbosa (prior to the investigation) has a
history of overall compliance with the Commission's rules.
Accordingly, after consideration of the entire record (including Mr.
Barbosa's response to the NAL), the Forfeiture Policy Statement, and
the factors set forth in Section 503(b)(2)(E) of the Act, we find
that, although cancellation of the monetary forfeiture is not
warranted, a reduction of the forfeiture amount from $20,000 to
$16,000 is appropriate.
IV. ordering clauses
17. 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(f)(4) of the Commission's rules, Joaquim
Barbosa IS LIABLE FOR A MONETARY FORFEITURE in the amount of sixteen
thousand dollars ($16,000) for violation of Section 301 of the Act.
18. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules by close of business on December 31, 2012.
If the forfeiture is not paid within the period specified, the case
may be referred to the U.S. Department of Justice for enforcement of
the forfeiture pursuant to Section 504(a) of the Act. Joaquim Barbosa
shall send electronic notification of payment to NER-Response@fcc.gov
on the date said payment is made. The payment must be made by check or
similar instrument, wire transfer, or credit card, and must include
the NAL/Account number and FRN referenced above. 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.
19. 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.
20. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Joaquim Barbosa at his address of record and to his
counsel, Jonathan L. Kramer, Kramer Telecom Law Firm, P.C., 2001 S.
Barrington Avenue, Suite 306, Los Angeles, California 90025.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
47 U.S.C. S: 301.
Pursuant to the Table of Allocations, the 267-322 MHz Band is allocated
solely for Federal Government use for all operations within the United
States. See 47 C.F.R. S: 2.106. In the band 255-328.6 MHz, the fixed and
mobile services are limited to the military services. See id., Federal
Government Footnote G27.
See Joaquim Barbosa, File No. EB-08-NY-034, Notice of Apparent Liability
for Forfeiture, NAL/Acct. No. 200832380005 (Enf. Bur. Feb. 26, 2008)
(NAL). A comprehensive recitation of the facts and history of this case
can be found in the NAL and is incorporated herein by reference.
See id. at 1, paras. 3-6.
See id. at 2, para. 6.
Id.
Id.
Id.
Id. at 2, paras. 6-7.
Id. See Joaquim Barbosa, Notice of Unlicensed Operation (Enf. Bur., New
York Office issued Feb. 11, 2008) (NOUO).
See NAL, supra note 3. See also 47 U.S.C. S: 301.
See NAL at 3-4, para. 10. See also 47 U.S.C. S: 503(b)(2)(E).
See Letter from Jonathan L. Kramer, Counsel for Joaquim Barbosa, to New
York Office, Northeast Region, Enforcement Bureau (March 25, 2008) (on
file in EB-08-NY-034) (NAL Response).
Id. at 1.
See id. at 1-17. In addition, Mr. Barbosa requests potential resolution of
this matter through a settlement. See id. at 17. The Bureau's Northeast
Region Office discussed the matter with Mr. Barbosa's counsel, Jonathan L.
Kramer, but an agreement satisfactory to both sides could not be reached.
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), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301. See NAL, supra note 3.
NAL Response at 1.
See id. at 6, 10-12.
See id.
Id. at 6.
Id. at 11.
See id.
We note that Mr. Barbosa has not presented (including in his NAL Response)
any Brazilian license that specifically authorizes him to operate the
radio equipment on the frequency 296.550 MHz, nor a copy of the Brazilian
license held by the individual who supposedly granted him permission to
operate under his Brazilian license.
Under Section 301 of the Act, 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-and in this instance, an FCC license-granted under the
provisions of the Act. See 47 U.S.C. S: 301.
To the extent Mr. Barbosa is arguing that he was operating under
reciprocal operating authority (i.e., under Brazilian authority) under
Section 97.107 of the Rules, 47 C.F.R. S: 97.107, he is not eligible for
such authority, given his status as a United States citizen. See NAL
Response at 7 ("Mr. Barbosa became a United States citizen in 1999.");
Public Notice, "Amateur Service Reciprocal Operation" (rel. April 9, 1999)
("No United States citizen, regardless of any other citizenship also held,
is eligible for reciprocal operating authority.")
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387, para. 3 (1991) (holding that ignorance of the law or
inadvertent mistakes are not mitigating circumstances that can serve to
justify a forfeiture reduction), pet. for recons. denied, 7 FCC Rcd 3454
(1992). See also Paisa 2 Car and Limousine Service, Inc., Memorandum
Opinion and Order, 26 FCC Rcd 14423, 14424, para. 5 (Enf. Bur. 2011)
(declining to cancel forfeiture based on licensee's claim that it did not
know that it was operating on an unauthorized frequency); Kenneth Paul
Harris, Sr., 15 FCC Rcd 12933, 12935, para. 7 (Enf. Bur. 2000) (denying a
mitigation claim of a broadcast licensee, stating that licensee's
ignorance of the law did not excuse the unauthorized transfer of the
station); Lakewood Broadcasting Service, Inc., 37 FCC 2d 437, 438, para. 6
(1972) (denying a mitigation claim of a broadcast licensee who asserted an
unfamiliarity with the station identification requirements).
See 47 C.F.R. Part 97.
47 C.F.R. S: 97.301.
See 47 C.F.R. S: 2.106.
See NAL at 1-2, paras. 2-5.
U.S. Const. amend. IV, V.
See NAL Response at 8, 13-15.
We reject Mr. Barbosa's argument that the questioning by FCC agents was a
"custodial interrogation" and that, therefore, he was entitled to receive
a "Miranda Warning." "Custodial interrogation" is defined as "questioning
initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant
way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). At the time of the
inspection at his home, the FCC agents did not hold Mr. Barbosa in
custody. The agents simply requested-as part of the fact-gathering
process-the opportunity to ask questions and to inspect the radio
equipment (located at his home) that the agents believed (and later
confirmed) was causing the interference. See id. at 444, 477 (Miranda
warnings are not required to be given during "general questioning of
citizens in the fact-finding process."). As an amateur licensee, Mr.
Barbosa knew (or should have known) that FCC agents have the authority to
inspect all radio installations associated with his amateur station. See
47 U.S.C. S: 303(n). Indeed, Mr. Barbosa cooperated with the inspection
without any indication or suggestion of force by the agents. The facts
show that Mr. Barbosa voluntarily led the agents to certain parts of his
home where the antenna and radio were located, and also voluntarily
responded to questions. There simply is nothing in the record to suggest
that Mr. Barbosa (or any reasonable person in the same position for that
matter) was not free to leave at anytime during the inspection; nor does
Mr. Barbosa assert that he was forced in any way by the agents to remain
on the premises.
47 U.S.C. S: 303(n) (emphasis added).
See Norfolk Southern Railway Company, Memorandum Opinion and Order, 11 FCC
Rcd 519 (CIB 1996) ("The right to inspect a station is one of the
cornerstones of the FCC's ability to ensure compliance with the
Communications Act and the FCC regulations."). See also Randall R. Gaines,
Revocation Order, 72 FCC 2d 871, 878, para. 13 (Rev. Board 1979) (search
warrant is not required for an inspection of a CB radio station).
See 47 C.F.R. S: 97.103(c).
See NAL Response at 2-4. Mr. Barbosa also asserts in his response (id. at
4, 13-14) that one of the agents referred to the other agent as an FBI
agent. Both FCC agents deny ever representing themselves (or referring to
the other agent) as an FBI agent, and both confirmed that proper FCC
identification was presented to Mr. Barbosa. Indeed, the business card
that Mr. Barbosa was given and the resulting NOUO (see supra note 10) he
was issued at the end of the inspection clearly reflect that he was
dealing with the FCC (and not the FBI).
See NAL Response at 4-5.
See id. at 5-6.
See id. at 6. Mr. Barbosa was also asked by the agents to sign the NOUO to
confirm receipt.
Mr. Barbosa also argues that, "to the extent the Commission relies on
[his] `admissions,' the Commission should also recognize that he is not a
native English speaker and, therefore, his ability to respond more
properly to questions at the time of the inspection, coupled with the
agents failure to employ appropriate "safeguards," should be considered in
the overall forfeiture assessment. Id. at 13. We find this argument
unpersuasive; and it is moot, in any event, given Mr. Barbosa's written
response to the NAL in which he admits to operating on the frequency
296.550 MHz without a license. NAL Response at 1. The record also shows
that Mr. Barbosa understood the purpose of the inspection in spite of his
asserted deficient English language proficiency. See id. at 15 ("[W]hen
[the agents] were looking in the wrong place in Mr. Barbosa's yard for the
uplink antenna connected to the Alinco radio, Mr. Barbosa directed them to
the correct location."). In addition, none of the questions that the
agents asked Mr. Barbosa were inappropriate.
See NAL Response at 8-9, 16.
See NAL at 1, para. 2.
See 47 C.F.R. S: 2.1(c) (defining "interference" as: "The effect of
unwanted energy due to one or a combination of emissions, radiations, or
inductions upon reception in a radiocommunication system, manifested by
any performance degradation, misinterpretation, or loss of information
which could be extracted in the absence of such unwanted energy.").
See id. (defining "harmful interference" as: "Interferences which
endangers the functioning of a radionavigation service or of other safety
services or seriously degrades, obstructs, or repeatedly interrupts a
radiocommunication service . . . .").
See Forfeiture Policy Statement, 12 FCC Rcd at 17113; 47 C.F.R. S:
1.80(b). See, e.g., AT&T Wireless Services, Inc., 17 FCC Rd 21866,
21870-71, para. 14 (2002) (finding that a downward adjustment was not
warranted on the ground that there was no indication that the unpainted
antenna structure actually compromised air safety); AGM-Nevada, LLC, 18
FCC Rcd 1476, 1478-79, para. 8 (Enf. Bur. 2003) (finding that a downward
adjustment was not warranted on the ground that the station's unauthorized
operations did not result in interference or other public harm); WWC
License LLC, 16 FCC Rcd 19490, 19493, para. 10 (Enf. Bur. 2001) (finding
that a downward adjustment was not warranted on the ground that the
stations' operations without conditional authority supported valuable
services and did not result in public harm).
NAL Response at 16.
See Raimundo P. Silva, EB-04-SF-150, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200532960001 (Enf. Bur. July 25, 2005) (Raimundo
Silva). See also Jack Gerritsen Bell, Forfeiture Order, 20 FCC Rcd 19256
(Enf. Bur. 2005) (affirming upward adjustment of proposed forfeiture
against amateur licensee who interfered with other licensed users).
NAL Response at 15.
See Five Star Parking d/b/a Five Star Dispatch, Forfeiture Order, 23 FCC
Rcd 2649, 2651 (Enf. Bur. 2008) (responsive and cooperative behavior from
the subject of an investigation is expected and does not justify reduction
or cancelation of a forfeiture).
NAL Response at 12.
In his response to the NAL, Mr. Barbosa states: "Mr. Barbosa reserves all
the rights in this regard to respond to this issue once a final total
forfeiture amount, if any, is known with finality." Id. We note that
Bureau staff previously invited Mr. Barbosa to submit financial
information to support his inability to pay claim, but Mr. Barbosa
declined the request.
NAL at 4-5, para. 15. Further, in general, an individual's or entity's
gross revenues are the best indicator of its ability to pay a forfeiture.
See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7
FCC Rcd 2088, 2089 (Enf. Bur. 1992); Local Long Distance, Inc., Order of
Forfeiture, 15 FCC Rcd 24385 (Enf. Bur. 2000); Hoosier Broadcasting
Corporation, Memorandum Opinion and Order, 15 FCC Rcd 8640 (Enf. Bur.
2002). See also 47 C.F.R. 1.80(f)(3).
Id.
See, e.g., Bureau D'Electronique Appliquee, Inc., Forfeiture Order, 20 FCC
Rcd 17893 (Enf. Bur. 2005) (denying inability to pay claim because company
failed to provide supporting financial documentation).
See NAL Response at 12.
See, e.g., Gila Electronics, Inc., Forfeiture Order, 27 FCC Rcd 400, 402,
para. 9 (Enf. Bur. 2012) (reducing forfeiture based on history of
compliance with the Rules); Taylor Communications, Inc., Forfeiture Order,
26 FCC Rcd 12885, 12888, para. 10 (Enf. Bur. 2011) (reducing forfeiture
based on history of compliance with the Rules).
47 U.S.C. S: 503(b)(2)(E). See 47 C.F.R. S: 1.80(b)(5).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
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.
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Federal Communications Commission DA 12-2008
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Federal Communications Commission DA 12-2008