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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-TP-0132
)
Albert R. Knighten, Jr. NAL/Acct. No.: 201232700004
)
Fort Myers, Florida FRN: 0021817952
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 5, 2012 Released: June 5, 2012
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Albert R. Knighten, Jr., 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
107.5 MHz from his residence in Fort Myers, Florida. We conclude that
Mr. Knighten is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On December 1, 2011, in response to a complaint from an anonymous
caller, agents from the Enforcement Bureau's Tampa Office (Tampa
Office) used direction-finding techniques to locate the source of
radio frequency transmissions on the frequency 107.5 MHz to an FM
transmitting antenna mounted on a tower at Mr. Knighten's residence in
Fort Myers, Florida. Agents determined that the signals on 107.5 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. Knighten or to anyone else for
operation of an FM broadcast station at or near this address.
3. On December 9, 2011, agents from the Tampa Office used
direction-finding techniques to confirm that the unlicensed station on
107.5 MHz was still in operation from the same location identified on
December 1, 2011. Local law enforcement executed a search warrant for
the premises, and agents from the Tampa Office interviewed Mr.
Knighten, who was present in his residence when the station was on the
air. Agents from the Tampa Office also inspected the unlicensed radio
station located in the premises before the equipment was seized by
local law enforcement. Mr. Knighten admitted to purchasing and
installing the radio equipment, and claimed to be the sole person
operating the unlicensed station from this location for over a month.
The agents from the Tampa Office identified Mr. Knighten's voice as
the person broadcasting over the air on December 1 and 9, 2012, and
also found a video available over the Internet showing Mr. Knighten
being interviewed about the station. During the interview, Mr.
Knighten discussed the station's programming, encouraging interested
listeners to tune in to the station, and acknowledged its unlicensed
status.
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 Operations
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
December 1 and 9, 2011, agents from the Tampa Office determined that
an unlicensed radio station on the frequency 107.5 MHz was operating
from Mr. Knighten's residence in Fort Myers, Florida. On December 9,
2011, Mr. Knighten was present in his residence when the station was
in operation and admitted to operating the unlicensed station for more
than a month. Mr. Knighten also admitted that he purchased and
installed the radio transmitting equipment for the station and was
solely responsible for the station. A review of the Commission's
records revealed that Mr. Knighten did not have a license to operate a
radio station at this location. Because Mr. Knighten consciously
operated the station and on more than one day, the apparent violation
of the Act was both willful and repeated. Based on the evidence before
us, we find that Mr. Knighten apparently willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
A. Proposed Forfeiture Amount
6. 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. In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. The record evidence in this
case shows that Mr. Knighten wanted to obtain a license for his
station and made public statements to that effect and, therefore, knew
that his station was operating on an unlicensed basis. In spite of
this knowledge, Mr. Knighten operated and publicly promoted the
unlicensed station for over a month, in deliberate disregard for the
Act and the Commission's requirements. Thus, we find that an
additional upward adjustment of $5,000 in the forfeiture amount is
warranted. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Knighten is apparently liable for a forfeiture in the amount
of $15,000.
IV. ORDERING CLAUSES
7. 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, Albert R. Knighten,
Jr. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of fifteen thousand dollars ($15,000) for violations of
Section 301 of the Act.
8. 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, Albert R.
Knighten, Jr. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. Payment of the forfeiture must be made by credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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.
Regardless of the form of payment, 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. For questions about payment
procedures, contact the Financial Operations Group Help Desk at
1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Albert R. Knighten, Jr.
shall send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
10. 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. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Tampa Office, 4010 W. Boy Scout Blvd. Suite 425,
Tampa, Florida 33607, and must include the NAL/Acct. No. referenced in
the caption. The written statement shall also be e-mailed to
SCR-Response@fcc.gov.
11. 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.
12. 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 regular mail to Albert R. Knighten, Jr. at his address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director,
Tampa Office
Southeast 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.
See http://www.youtube.com/watch?v=hLKdgofwtuM (uploaded Apr. 16, 2011)
(last visited Apr. 23, 2012) (An interview with Mr. Knighten, in which he
states: "[The] future of Dunbar Community Radio Service, we hope to be
basically a licensed radio station. Until then, we work on a not to
interfere basis.")
Id.
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.
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 supra note 3.
See, e.g., Robert Brown, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13740 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending); Loyd Morris, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13736 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending).
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.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-888
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Federal Communications Commission DA 12-888