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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Glen Rubash Licensee of Amateur Radio Station KC0GPV
   Manhattan, Kansas ) ) ) ) ) ) File Number: EB-FIELDSCR-12-00004676
   NAL/Acct. No.: 201332560002 FRN: 0002373934




                                FORFEITURE ORDER

   Adopted: November 21, 2013 Released: November 21, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of four thousand dollars ($4,000) to Glen Rubash for
       willfully and repeatedly violating Section 301  of the Communications
       Act of 1934, as amended (Act).^ The noted violations involved Mr.
       Rubash's operation of an unlicensed radio transmitter on the frequency
       88.3 MHz in Manhattan, Kansas.

   II. BACKGROUND

    2. On December 5, 2012, the Enforcement Bureau's Kansas City Office
       (Kansas City Office) issued a Notice of Apparent Liability for
       Forfeiture  (NAL) ^ to Mr. Rubash for operating an unlicensed radio
       transmitter in Manhattan, Kansas.^ As reflected in the NAL, on
       September 26 and 27, 2012, agents from the Kansas City Office
       determined that an unlicensed radio station was operating on the
       frequency 88.3 MHz from a detached garage in Manhattan, Kansas.^ The
       agents determined that Mr. Rubash secured space to the garage
       specifically to house and operate the unlicensed radio station.^ On
       September 27, 2012, Mr. Rubash admitted over the telephone that he
       installed and owned the station's radio transmitting equipment and
       demonstrated control over the station by stating that he would refuse
       to surrender the equipment to the agents from the Kansas City Office
       if required to do so.^

    3. In response to the NAL, Mr. Rubash requests cancellation or reduction
       of the proposed forfeiture.^ While he admits making the admissions via
       telephone on September 27, 2012, he asserts that his statements were
       based on incorrect information. He states he owned and installed a low
       power FM radio transmitter, which operated within Part 15 unlicensed
       limits^ and was only able to reach 300 feet beyond the garage housing
       the station, to teach a small group of college and high school
       students how to operate a community radio station.^ He states he
       attached his transmitter to a home-built antenna supplied by one of
       the students.^ He claims no knowledge of the radio transmitter that
       was in place when the agents inspected the station on September 27,
       2012, because he was absent from the station from late July until
       September 29, 2012, due to illness.^ He asserts that someone must have
       replaced the transmitter while he was recuperating from his illness.^
       Accordingly, he asserts he should not be held responsible for unlawful
       actions which occurred during his absence.^ Finally, in the
       alternative, Mr. Rubash asserts that he is unable to pay the
       forfeiture and requests a reduction.^

   III. DISCUSSION

    4. 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.
       Rubash's NAL 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.^

    5. We affirm the NAL's finding that Mr. Rubash violated Section 301 of
       the Act.^ 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.^ It is undisputed that Mr. Rubash secured the
       garage space for use by the radio station, and owned and operated a
       radio transmitter on the frequency 88.3 MHz without a license. Mr.
       Rubash contends, however, that his transmitter was not the transmitter
       found in use by agents on September 27, 2012. Assuming he owned and
       operated the low power FM transmitter as alleged,^ we would still
       conclude he violated Section 301 of the Act. Based on the pictures
       provided by Mr. Rubash and information gathered by agents from the
       Kansas City Office, it appears his low power FM transmitter was not
       FCC certified. Moreover, the home-built antenna in use at the station
       was not authorized to be used with his transmitter. All intentional
       radiators operating pursuant to Part 15 of the Rules must be certified
       for use as a Part 15 device.^ Intentional radiators may only be
       operated with the antenna with which they are authorized.^ Operating a
       Part 15 device in a manner that is inconsistent with the Part 15 Rules
       requires a license pursuant to Section 301 of the Act.^ Accordingly,
       operation of the non-certified low power FM transmitter with an
       unauthorized antenna described by Mr. Rubash was inconsistent with
       Part 15 and required a license under Section 301 of the Act. A review
       of the Commission's records confirms that no license or authorization
       was issued to anyone to operate a radio station on 88.3 MHz from this
       location. Moreover, the fact that Mr. Rubash may have been absent from
       the station for a period of time does not mean that he did not operate
       or exercise control over the station, as multiple individuals may
       operate the same station.^ We have previously held that, because
       Section 301 of the Act provides that "no person shall use or operate"^
       radio transmission equipment, liability for unlicensed operation may
       be assigned to any individual taking part in the operation of the
       unlicensed station, regardless of who else may be responsible for the
       operation.^ Therefore, based on the evidence before us, we conclude
       that Mr. Rubash willfully and repeatedly violated Section 301 of the
       Act by operating radio transmission equipment without the required
       Commission authorization.

    6. In the NAL Response, Mr. Rubash also states that he is unable to pay
       the $15,000 forfeiture. With regard to an individual or entity's
       inability to pay claim, the Commission has determined that gross
       revenues are generally the best indicator of an ability to pay a
       forfeiture.^ Based on the financial documents provided by Mr. Rubash,
       we find sufficient basis to reduce the forfeiture to $4,000.^ However,
       we caution Mr. Rubash that a party's inability to pay is only one
       factor in our forfeiture calculation analysis, and is not
       dispositive.^ We have previously rejected inability to pay claims in
       cases of repeated or otherwise egregious violations.^ Therefore,
       future violations of this kind may result in significantly higher
       forfeitures that may not be reduced due to Mr. Rubash's financial
       circumstances.

   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(f)(4) of the Commission's rules, Glen Rubash IS
       LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
       dollars ($4,000) for violations of Section 301 of the Act.^

    8. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Order.^  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.^  Glen Rubash shall send electronic notification of
       payment to SCR-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.

    9. Any request for full payment over time 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.

   10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to Glen Rubash
   at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301.

   ^ Glen Rubash, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
   15044 (Enf. Bur. 2012) (NAL). A comprehensive recitation of the facts and
   history of this case can be found in the NAL and is incorporated herein by
   reference.

   ^ Id. at 15044, paras. 2-3.

   ^ Id. at 15046, para.6.

   ^ Id. at 15044, para. 3.

   ^ Letter from Glen Rubash to Kansas City Office, South Central Region,
   Enforcement Bureau at 1-2 (received Dec. 20, 2012) (NAL Response).

   ^ See, e.g.,  47 C.F.R. S 15.209.

   ^ Mr. Rubash provided photographs of his low power FM radio transmitter.
   See NAL Response at 4-5.

   ^ Id.

   ^ Mr. Rubash states that when he went to the station on September 29,
   2012, several pieces of equipment had been removed from the station and
   there was no transmitter present other than his disconnected low power
   transmitter. Id at 2-3. Mr. Rubash, however, provided no corroborating
   documentation for his statement, such as a police report detailing the
   property loss.

   ^ Id. at 2.

   ^ Mr. Rubash also states that he was under the influence of pain
   medication during his telephone conversation on September 27, 2012. See
   NAL Response at 2. As discussed in paragraph 5 infra, Mr. Rubash's written
   statements in the NAL Response, made while he was not under the influence
   of medication, also demonstrate that he violated Section 301. Therefore,
   although Mr. Rubash appeared to sound lucid to agents on September 27,
   2012, his written statements in the NAL Response are sufficient to affirm
   the NAL's finding that Mr. Rubash violated Section 301 of the Act.

   ^ Id. at 3.

   ^ 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).

   ^ See NAL supra note 2.

   ^ 47 U.S.C. S 301.

   ^ We remain skeptical of Mr. Rubash's story, as he made no mention of
   students of any kind during the interview on September 27, 2012.

   ^ See 47 C.F.R. S 15.201(b).

   ^ See 47 C.F.R. S 15.204(c).

   ^ See 47 C.F.R. S 15.1(b).

   ^ 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).

   ^ 47 U.S.C. S 301.

   ^ See, e.g., Durrant Clarke, 26 FCC Rcd at 6984, para. 7; Loyd Morris,
   Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13736, 137638-39,
   para. 8 (Enf. Bur. 2010); Robert Brown, Notice of Apparent Liability for
   Forfeiture, 25 FCC Rcd 13740, 13741-42, para. 8 (Enf. Bur. 2010); Jean L.
   Senatus, Forfeiture Order, 20 FCC Rcd 14418, 14420, para. 11 (Enf. Bur.
   2005).

   ^ See Hoosier Broadcasting Corp.,  Memorandum Opinion and Order, 15 FCC
   Rcd 8640 (2000) (forfeiture not deemed excessive where it represented
   approximately 7.6 percent of the violator's gross revenues); Local Long
   Distance, Inc., Order of  Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture
   not deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues).

   ^ This forfeiture amount falls within the percentage range that the
   Commission has previously found acceptable. See supra note 27.

   ^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).

   ^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011)
   (holding that violator's repeated acts of malicious and intentional
   interference outweighed evidence concerning his ability to pay), aff'd,
   Memorandum Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson
   Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
   2009) (holding that permittee's continued operation at variance with its
   construction permit constituted an intentional and continuous violation,
   which outweighed permittee's evidence concerning its ability to pay the
   proposed forfeitures).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 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.

   Federal Communications Commission DA 13-2235

   4

   Federal Communications Commission DA 13-2235