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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Kevin W. Bondy Licensee of Station WQGX752 Encino,
California ) ) ) ) ) ) File No.: EB-09-LA-0026 NAL/Acct. No.: 200932900004
FRN: 0016490633
Memorandum opinion and order
Adopted: February 14, 2013 Released: February 15, 2013
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order (MO&O), issued pursuant to
Section 405 of the Communications Act of 1934, as amended (Act),^ we
dismiss as procedurally defective the petition for reconsideration^
filed by Kevin W. Bondy (Mr. Bondy), licensee of General Mobile Radio
Service (GMRS) Station WQGX752, in Encino, California, ^ of the
Forfeiture Order issued on June 6, 2011.^ The Forfeiture Order imposed
a monetary forfeiture in the amount of $24,000 for willful and
repeated violation of Section 301 of the Communications Act of 1934,
as amended (Act),^ for engaging in unlicensed radio operation; willful
and repeated violation of Section 333 of the Act^ and Section
95.183(a)(5) of the Commission's rules (Rules),^ for intentional
interference to licensed radio operations; and willful violation of
Section 303(n) of the Act,^ and Section 95.115 of the Rules,^ for
refusing to allow an inspection of his radio equipment by FCC
personnel.
II. Background
2. This case concerns intentional radio interference aimed at the
licensed operations of The Oaks Shopping Center (The Oaks) in Thousand
Oaks, California.^ An investigation of the interference by the
Enforcement Bureau's Los Angeles Office (Los Angeles Office) on March
5, 2009, revealed an unlicensed and unauthorized repeater transmitter
in a secured radio communications facility on Oat Mountain in the
Santa Susana Mountains. A Los Angeles agent observed pulsating signals
on frequencies 461.375 MHz and 466.375 MHz emanating from the repeater
transmitter and also observed a beam antenna pointed in the direction
of The Oaks. These transmissions effectively "jammed" The Oaks
operations on these two frequencies. On March 6, 2009, in an effort to
locate the point of origin of the transmission from the unlicensed and
unauthorized repeater, the agent again monitored frequencies 461.375
MHz and 466.375 MHz in the vicinity of The Oaks and observed pulsating
signals that interfered with the normal transmissions on those
frequencies.^
3. Later on March 6, 2009, after consultation with personnel from The
Oaks and the Ventura County Sheriff's Department, the Los Angeles
agent used direction-finding techniques to locate the unidentified
subject, who was communicating with The Oaks personnel on frequencies
464.7125 MHz and 462.8375 MHz. During the time The Oaks personnel
engaged in radio communications with the subject, he acknowledged he
was intentionally interfering with The Oaks's ability to communicate
on frequencies 461.375 MHz and 466.375 MHz, in order to render The
Oaks's repeater unusable and to force The Oaks off its licensed
channels.^ At approximately 7:30 p.m., the Los Angeles agent located
the source of the voice transmissions on frequencies 464.7125 MHz and
462.8375 MHz (the frequencies used to communicate by The Oaks and the
still-unidentified subject) to a vehicle in the National Park Service
parking structure across the street from The Oaks. The Ventura County
Sheriff's Department then secured the area and identified the subject
as Kevin Bondy. The Los Angeles agent identified himself to Mr. Bondy
and explained that a refusal to allow an inspection could result in a
fine. Then the agent asked Mr. Bondy if the agent could perform an
inspection of all radios in his vehicle. Initially, Mr. Bondy refused
to allow an inspection, then a few minutes later, agreed to allow an
inspection, then refused again after the Los Angeles agent began
inspecting all of the radio equipment that Mr. Bondy had in his
vehicle.^
4. In the Forfeiture Order, the Enforcement Bureau's Western Region
(Region) considered Mr. Bondy's arguments that this was simply a case
of mistaken identity, that Mr. Bondy did not own or operate any
equipment on Oat Mountain, that he did not commit the violations, that
he did not refuse to allow the inspection, and that he lacks the
ability to pay the proposed forfeiture amount.^ The Region found no
merit in Mr. Bondy's arguments and assessed a forfeiture of $24,000.^
In his Petition, Mr. Bondy reiterates his arguments that he did not
commit the violations and that he did not refuse to allow the
inspection, and he adds that there is no proof that he caused the
interference or refused to allow the inspection.^ Consequently, Mr.
Bondy argues, the Forfeiture Order should be reversed.^
III. Discussion
5. Section 405(a) of the Act^ and Section 1.106(f) of the Rules^ require
the filing of a petition for reconsideration with the Commission's
Secretary in Washington, D.C. within thirty days from the date of
public notice of the final action.^ In this case, public notice of the
Forfeiture Order occurred upon release on June 6, 2011.^ The thirtieth
day after June 6, 2011, was July 6, 2011. Thus, Mr. Bondy should have
filed his request for reconsideration with the Commission's Secretary
in Washington, D.C. no later than July 6, 2011.^ While Mr. Bondy
emailed a copy of his Petition to the Region on July 6, 2011, there
is no evidence that a copy was ever received by the Secretary of the
Commission. As Section 1.106(i) of the Rules explicitly states,
"[p]etitions submitted only by electronic mail and petitions submitted
directly to staff without submission to the Secretary shall not be
considered to have been properly filed."^ Accordingly, because Mr.
Bondy failed to timely file his Petition, we dismiss the Petition on
procedural grounds.^
6. We further find that even if Mr. Bondy's Petition was not
procedurally defective, the Petition would fail on the merits.
Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters.^ A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.^
7. Mr. Bondy raises no new issues that require discussion here.^ He
simply reiterates his claims that there is no evidence that he was
responsible for the violations with which he was charged.^ We
disagree. As explained in the Forfeiture Order,^ a Los Angeles agent,
using direction-finding techniques, located Mr. Bondy as he
transmitted on frequencies 464.7125 MHz and 462.8375 MHz on March 6,
2009. The agent successfully located the initiating transmissions to a
vehicle located at the parking structure near The Oaks in which Mr.
Bondy was operating. Mr. Bondy was then identified by a Ventura County
police officer, a fact that Mr. Bondy does not dispute. While the Los
Angeles agent was attempting to locate Mr. Bondy, The Oaks personnel
recorded their transmissions with Mr. Bondy in which Mr. Bondy ordered
them to vacate frequencies 461.375 MHz and 466.375 MHz while he was
transmitting on frequencies 464.7125 MHz and 462.8375 MHz. Mr. Bondy
stated in his transmissions to The Oaks personnel, that he had been
jamming the frequencies 461.375 MHz and 466.375 MHz, and that The Oaks
had to stop using those frequencies. Thus, the Forfeiture Order is
supported by evidence that Mr. Bondy transmitted on frequencies that
he had no authorization for and announced, and engaged in, intentional
interference to The Oaks' operations on frequencies 461.375 MHz and
466.375 MHz. Consequently, we find there is sufficient evidence that
Mr. Bondy willfully and repeatedly violated Sections 301 and 333 of
the Act and Section 95.183(a)(5) of the Rules.
8. We also find that there is sufficient evidence that Mr. Bondy
willfully violated Section 303(n) of the Act, and Section 95.115 of
the Rules, by refusing to allow an inspection of his radio equipment
by FCC personnel. After the Los Angeles agent requested an inspection
of Mr. Bondy's radio equipment on March 6, 2009, Mr. Bondy initially
refused an inspection, then agreed, then refused a full inspection.
Mr. Bondy believed that the agent was specifically focused on one of
Mr. Bondy's handheld radios to determine which frequencies were
programmed into the device, which was not readily apparent given that
Mr. Bondy had programmed channel names, rather than frequencies, into
the handheld. The agent reported that there were other radios in the
car that he was unable to inspect, including a console mount radio, a
handheld radio, and a mobile radio unit in the back seat.^ The agent's
attempt to determine the actual frequency programmed into the handheld
device was thwarted by Mr. Bondy, and Mr. Bondy indicated to the agent
that he could not conduct a full and complete inspection of all of the
radio equipment in the vehicle. Because of Mr. Bondy's refusal, the
agent did not inspect those radios.^
9. Therefore, we find that the Petition provides no basis for further
reduction or cancellation of the monetary forfeiture assessed against
Mr. Bondy, even if his Petition had been timely filed, and affirm the
Forfeiture Order.
IV. ordering clauses
10. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended,^ and Section 1.106 of the
Rules,^ that the Petition for Reconsideration filed by Kevin W. Bondy
IS DISMISSED and the Forfeiture Order IS AFFIRMED.
11. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Kevin W. Bondy IS
LIABLE FOR A MONETARY FORFEITURE in the amount of FORFEITURE in the
amount of $24,000 for willfully and repeatedly violating sections 301
and 333 of the Act, and section 95.183(a)(5) of the Rules, and for
willfully violating section 303(n) of the Act and section 95.115 of
the Rules.^
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules immediately and no later than thirty (30)
calendar days after the release date of this Order on Review.^ 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.^ Kevin W. Bondy
shall send electronic notification of payment to WR-Response@fcc.gov
on the date said payment is made.
13. 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.
14. 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.
15. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both regular mail and by certified mail, return receipt
requested, to Kevin W. Bondy, at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ See 47 U.S.C. S 405.
^ See Kevin W. Bondy, Petition for Reconsideration (filed July 5, 2011)
(Petition).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. Western
Region 2011) (Forfeiture Order), aff'g Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932900004 (Enf. Bur. Western Region, Los
Angeles Office, rel. May 14, 2009) (NAL).
^ 47 U.S.C. S 301.
^ 47 U.S.C. S 333.
^ 47 C.F.R. S 95.183(a)(5).
^ 47 U.S.C. S 303(n).
^ 47 C.F.R. S 95.115.
^ The Oaks is the licensee of land mobile radio Station KOA995, with
authority to operate on frequencies 461.375 MHz, 462.525 MHz, and 467.525
MHz. The Oaks is also the licensee of land mobile radio Station KG9712,
with authority to operate on frequency 466.375 MHz. As a GMRS licensee
under Part 95 of the Rules, Mr. Bondy has no authorization to operate on
frequencies 461.375 MHz and 466.375 MHz, the frequencies licensed to The
Oaks, or frequencies 464.7125 MHz and 462.8375 MHz, the frequencies that
the Los Angeles agent located Mr. Bondy transmitting on during the
investigation on March 6, 2009. See 47 C.F.R. S 95.29 (Channels
available).
^ Forfeiture Order, 26 FCC Rcd at 7840-7841.
^ Specifically, the subject told The Oaks personnel that they had "plenty
of warning." The subject then effectively shut down all operations on The
Oaks frequencies by transmitting NOAA weather radio over every channel,
and told The Oaks personnel that he had been "jamming" the frequencies
461.375 MHz and 466.375 frequencies by "pulsing" them to shut down the
repeater. The subject also said that The Oaks now had no repeaters, that
The Oaks had to stop using the frequencies 461.375 MHz and 466.375 MHz
repeater pair, and that The Oaks had to apply to the FCC to cancel the
frequencies 461.375 MHz and 466.375 MHz repeater pair and request a new
frequency pair. The subject said to The Oaks personnel that he gave The
Oaks three weeks to vacate the frequencies but The Oaks did not do so, so
"this is what [it has] come to." The subject then explained in detail to
The Oaks personnel how to work with the FCC and frequency coordinators to
apply for a new frequency for its license. See id., 26 FCC Rcd at 7841.
^ Id.
^ Id., 26 FCC Rcd at 7842-7845.
^ Id.
^ Petition at 1-2.
^ Id. at 2.
^ 47 U.S.C. S 405(a).
^ 47 C.F.R. S 1.106(f).
^ See also 47 C.F.R. S 1.106(i).
^ See 47 C.F.R. S 1.4(b).
^ See 47 C.F.R. SS 1.106(f), 1.4(j).
^ 47 C.F.R. S 1.106(i).
^ See Washington Broadcast Management Co., Inc., Memorandum Opinion and
Order, 15 FCC Rcd 6607 (2000); Bay Broadcasting Corporation, Memorandum
Opinion and Order, 15 FCC Rcd 23449 (Enf. Bur. 2000).
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257 (Enf. Bur. 2000), citing WWIZ, Inc., Memorandum
Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain Journal
Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967
(1966).
^ EZ Sacramento, Inc., 15 FCC Rcd at 18257.
^ Mr. Bondy argues that enforcement action should be taken against The
Oaks for operating on certain frequencies without an authorization.
Petition at 1. This fact was noted in the Forfeiture Order, along with the
explanation for the usage. Forfeiture Order, 26 FCC Rcd at 7841 n.5. ("The
Oaks had no authorization to operate on 464.7125 MHz and 462.8375 MHz.
However, they used those frequencies in this limited instance to
communicate with the subject, and other personnel, because of the
continual jamming of their authorized frequencies, and to allow the Los
Angeles agent to track the transmissions and locate them to the source of
the subject who was communicating with The Oaks. The agent ultimately
located the transmissions to Bondy's vehicle.")
^ We find irrelevant Mr. Bondy's claim that he did not own or lease
property on Oat Mountain. Petition at 2. As explained in the Forfeiture
Order, the Los Angeles Office determined that while the transmissions
emanating from Oat Mountain were causing the intentional interference, Mr.
Bondy was sitting in his car, as located by the Los Angeles Office,
explaining to The Oaks personnel why he was jamming them and why they had
to leave the frequencies being interfered with from Oat Mountain.
Forfeiture Order, 26 FCC Rcd at 7841.
^ Id., 26 FCC Rcd at 7842-7844.
^ Id., 26 FCC Rcd at 7841 n.6.
^ Id., 26 FCC Rcd at 7844.
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ 47 U.S.C. SS 301, 303(n), 333, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311,
1.80(f)(4), 95.115, 95.183(a)(5).
^ 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.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 13-199
6
Federal Communications Commission DA 13-199