[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26595-26596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12811]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[FCC 98-61]
Order to Show Cause and Notice of Opportunity for Hearing
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Federal Communications Commission will hold a hearing to
determine whether to issue a Cease and Desist Order, and whether a
forfeiture will be imposed for the unlicensed operation of a radio
station in violation of the Communications Act in docket case CI 98-45.
DATES: Prehearing on May 18, 1998, 9:00 am; Hearing on June 16, 1998;
10:00 am.
ADDRESSES: All pleadings and papers must be mailed to Office of the
Secretary, 1919 M Street, N.W., Room 222, Washington, D.C. 20554,
Hearings held at Offices of the Commission.
FOR FURTHER INFORMATION CONTACT: Norman Goldstein and James Shook, Mass
Media Bureau, (202) 418-1430, e-mail ngoldste@fcc.gov and
ook@fcc.gov
SUPPLEMENTARY INFORMATION:
Released: April 6, 1998
The Commission has under consideration information concerning the
transmission of radio signals without a license by Lewis B. Arnold
(``Arnold''). For the reasons that follow, we order Arnold to show
cause, pursuant to Section 312(c) of the Communications Act of 1934, as
amended (the ``Act''), 47 U.S.C. 312(c), why we should not issue a
cease and desist order which prohibits further unauthorized
transmissions on his part. Also, pursuant to Section 1.80(g) of the
Commission's Rules (the ``rules''), 47 CFR 1.80(g), this order
constitutes a notice of opportunity for hearing to determine whether,
in addition to or as an alternative to the issuance of a cease and
desist order, a forfeiture should be imposed for violations of the Act
and the rules.
2. Background. On June 26, 1997, Dennis Anderson, the Seattle,
Washington, District Director of the Commission's Compliance and
Information Bureau (``CIB''), received information from Eric Carpenter
(``Carpenter''), General Manager of AM/FM broadcast stations KCVL/KCRK
in Colville, Washington, concerning an unauthorized radio station
operating on 95.3 MHz in Chewelah, Washington. Carpenter alleged that
the unauthorized station caused economic harm and interference to the
reception of his station on 92.1 MHz. On July 7, 1997, the CIB Seattle
Field Office received additional information from Carpenter to the
effect that the Chewelah station was owned by Arnold. On July 9, 1997,
a warning letter was sent to Arnold regarding the unlicensed radio
station on 95.3 MHz. In pertinent part, the warning letter stated:
Under Section 301 of the Communications Act of 1934, as amended,
and the Commission's Rules and Regulations, radio transmitting
apparatus, (other than certain low powered devices operated in
accordance with Part 15 of the Commission's Rules and Regulations),
may be operated only upon issuance by this Commission of a station
license covering such apparatus. Unlicensed operation may subject
the operator to serious penalties provided for in the Communications
Act. Because unlicensed operation creates a definite danger of
interference to important radio communications services and may
subject the operator to the penalties provided for in the
Communications Act, the importance of complying strictly with the
legal requirements mentioned above is emphasized.
The letter also requested that Arnold submit a written explanation
concerning the circumstances leading to the unauthorized operation of
transmitting equipment and what corrective action had been or would be
taken to prevent any future recurrence. Commission records reveal no
response from Arnold to this letter.
Thereafter, on August 20, 1997, Agents Donald Roberson
(``Roberson'') and Michael Rothe (``Rothe'') proceeded to the Chewelah
area and detected a radio signal on 95.3 using radio direction-finding
techniques. Further monitoring led Roberson and Rothe to conclude that
the signal originated from a vertical dipole antenna mounted on a pole
attached to a building located at N 103 4th Street East, Chewelah.
Field strength measurements indicated signal levels, when extrapolated
to 3 meters, of 1,261,500 ``V/m and 60,700 ``V/m. Part 15 of the rules
allows unlicensed operation of a low power radio transmitter in the FM
broadcast band provided the signal level is below 250 ``V/m at a
distance of 3 meters. 47 CFR 15.239. Thus, the field strength
measurements taken exceeded those allowed by Part 15 of the rules.
Again, on August 22, 1997, Roberson and Rothe located through radio
direction-finding techniques an unlicensed radio station operating on
95.3 MHz at N 103 4th Street East, Chewelah. At approximately 12:05
p.m., Roberson and Rothe, accompanied by Chewelah Police Officer Mark
Burrows, entered the property at N 103 4th Street East and requested to
inspect the station. Arnold invited the agents into his station and
gave them permission to inspect the radio transmission equipment.
5. Roberson and Rothe observed various pieces of audio gear and an
FM stereo transmitter, an amplifier rated at one Watt output, and a
vertical dipole antenna.1 Arnold then acknowledged the
following: (1) There is no license for the facilities; (2) he was fully
responsible for the unlicensed station; (3) he was operating unlicensed
to see if there was community support for his operation; (4) he had put
the radio equipment together from a kit; (5) he has a web page for the
radio station on the Internet; and (6) he had received the FCC warning
letter.2 By warning letter hand-delivered by Roberson and
Rothe,
[[Page 26596]]
Arnold again was advised that operation of the radio station violated
federal law, and he was ordered to cease operations. Arnold shut the
station off at 1:02 pm, as the agents were leaving. Subsequently, by
letter dated August 25, 1997, Carpenter alleged that Arnold had resumed
broadcasting on 95.3 MHz. On September 9, 1997, Carpenter telephoned
District Director Anderson in the CIB Seattle Field Office, reiterating
his complaint that Arnold's unlicensed transmissions were continuing.
On March 21, 1998, at 10:00 am, Roberson confirmed that Arnold's
transmissions were in fact continuing and that the signal levels far
exceeded Part 15 limits.
---------------------------------------------------------------------------
\1\ Arnold requested that his signal be checked without the
amplifier on. A field strength measurement revealed that with the
amplifier off he was still exceeding Part 15 limits.
\2\ Arnold also admitted that he holds an Amateur Extra Class
operator license, call sign KJ7VR. On February 28, 2005, such
license is due to expire. Should Arnold be found in violation of the
Commission's Rules and the Communications Act based on the evidence
before the Commission, any questions raised about Arnold's
qualifications to remain a Commission licensee will be addressed in
a separate proceeding.
---------------------------------------------------------------------------
6. Discussion. Section 301 of the Act, 47 U.S.C. Sec. 301, provides
in pertinent part: It is the purpose of this Act, among other things,
to maintain the control of the United States over all the channels of
radio transmission. * * * No person shall use or operate any apparatus
for the transmission of energy or communications or signals by radio
(a) from one place in any State * * * to another place in the same
State * * * except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this Act.
Anyone transmitting radio transmissions in the United States must
have authority from the Commission to do so. See 47 U.S.C. Sec. 301;
U.S. v. Medina, 718 F. Supp. 928 (S.D. Fla. 1989); U.S. v. Weiner, 701
F.Supp. 15 (D.Mass. 1988), aff'd, 887 F.2d 259 (1st Cir. 1989); Stephen
Paul Dunifer, 11 FCC Rcd 718, 720-21, Paras. 7-9 (1995) (regarding
Commission's licensing requirement); and Order to Show Cause and Notice
of Apparent Liability, 50 FR 20603, published May 17, 1985 (Alan H.
Weiner). As the facts recited above reflect, it appears that Arnold has
violated and may currently be violating Section 301 of the Act.
Ordering Clauses
7. Accordingly, It Is Ordered that, pursuant to Section 312(c) of
the Act, Lewis B. Arnold Is Directed To Show Cause why he should not be
ordered to Cease And Desist from violating Section 301 of the Act, at a
hearing to be held at a time and location specified in a subsequent
Order, upon the following issues:
1. To determine whether Lewis B. Arnold has transmitted radio
energy without appropriate authorization in violation of Section 301 of
the Act.
2. To determine whether, based on the evidence adduced pursuant to
the preceding issue, Lewis B. Arnold should be ordered to cease and
desist from violating Section 301 of the Act.
8. It Is further ordered that, pursuant to Section 312(d) of the
Communications Act of 1934, as amended, both the burden of proceeding
with the introduction of evidence and the burden of proof shall be upon
the Compliance and Information Bureau with respect to issues 1 and 2.
9. It Is further ordered that this Order to Show Cause shall
constitute a Bill of Particulars with respect to all foregoing issues.
10. It Is further ordered that, to avail himself of the opportunity
to be heard, Lewis B. Arnold, pursuant to Sections 1.91(c) of the
Commission's Rules, in person or by attorney, Shall File in triplicate
with the Commission within twenty (20) days of the mailing of this
Order, a written appearance stating that he will appear at the hearing
and present evidence on the matters specified in this Order.
11. It Is further ordered that, without regard as to whether the
hearing record warrants an order that Lewis B. Arnold cease and desist
from violating the Act or the rules, it shall be determined, pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
whether an Order For Forfeiture in an amount not to exceed $11,000
3 shall be issued against Lewis B. Arnold for the alleged
violations of Section 301 of the Act.
---------------------------------------------------------------------------
\3\ This figure reflects the maximum appropriate forfeiture
amount in light of the specific facts at issue. See 47 U.S.C.
Sec. 503(b)(2)(C); 47 CFR 1.80(b)(3), (b)(4), (b)(5); see also In re
the Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
12 FCC Rcd 17087 (1997)(petitions for reconsideration pending).
---------------------------------------------------------------------------
12. It is further ordered that in connection with the possible
forfeiture liability noted above, this document constitutes a notice of
opportunity for hearing pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules.
13. It is further ordered that a copy of each document filed in
this proceeding subsequent to the date of adoption of this Order Shall
Be Served on the counsel of record appearing on behalf of the Chief,
Compliance and Information Bureau. Parties may inquire as to the
identity of such counsel by calling the Compliance and Information
Bureau at (202) 418-1100, TTY (202) 418-2544. Such service Shall Be
Addressed to the named counsel of record, Compliance and Information
Bureau, Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554.
14. It is further ordered that the Office of Public Affairs,
Reference Operations Division of the Commission send a copy of this
Order by Certified Mail--Return Receipt Requested to: Lewis B. Arnold,
N 103 4th Street East, 2741 Flowery Trail Road, Chewelah, Washington
99109.
Also forward to: Lewis B. Arnold, The Independent, P.O. Box 5,
Chewelah, Washington 99109.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-12811 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P
