[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26596-26598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12813]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 98-62]
Order To Show Cause and Notice of Opportunity for Hearing
AGENCY: Federal Communications Commission.
ACTION: Notice.
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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 98-46.
DATES: Prehearing on May 20, 1998, 9:00 am; Hearing on June 30, 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
ok@fcc.gov
SUPPLEMENTARY INFORMATION:
Released: April 6, 1998
1. The Commission has under consideration information concerning
Keith Perry's transmission of radio signals without a license. For the
reasons that follow, we order Keith Perry to show cause, pursuant to
Section 312(c) of the Communications Act of 1934, as amended (the
``Act''), 47 U.S.C. Sec. 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 C.F.R. Sec. 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
[[Page 26597]]
imposed for violations of the Act and the rules.
2. Background. On March 24, 1997, the Compliance and Information
Bureau's (CIB) Dallas Field Office received a complaint from the Texas
Association of Broadcasters concerning an unauthorized radio station
operating on 88.5 MHz, northwest of Austin, Texas. On June 6, 1997,
Loyd P. Perry (``Agent Perry''), the Houston, Texas, resident agent of
the CIB and CIB Dallas Field Office Director James D. Wells (``Agent
Wells'') were on duty in the Austin, Texas, area in a mobile automatic
direction finding (MADF) vehicle. Agents Perry and Wells detected a
radio signal on the frequency 88.5 MHz in the area of north Austin.
Further monitoring led Agents Perry and Wells to determine that the
signal originated from a vertical beam antenna mounted on a tower on
the rear of the residence located at 607 Osage Drive, Leander, Texas,
over fifteen miles from the location Agents Perry and Wells first
detected the signal. Because the radio station utilized an external
antenna over fifty feet in height and the signal could be received over
fifteen miles away, Agents Perry and Wells concluded that the radio
transmitting equipment exceeded the lower power limits set forth in
Part 15 of the rules, 47 CFR Sec. 15.239(b).
3. At approximately 12:47 p.m., Agents Perry and Wells approached
the residence identified above. Leander Police Officer Tim Meaner was
on hand to assist if necessary. Keith Perry identified himself as owner
of the residence. Mr. Keith Perry admitted the operation of radio
transmitting equipment at the residence, but refused entry into the
residence. After a lengthy conversation, Keith Perry directed Agents
Loyd Perry and Wells to a window at the east side of the residence
where the agents were allowed to view the transmitting equipment.
4. Agents Perry and Wells observed a satellite dish mounted on the
exterior of the house and audio cables from an unknown source, feeding
into a small transmitter. Keith Perry stated that the cables provided
audio from a satellite source received by the satellite dish on the
residence. The transmitter, in turn, fed into another small
transmitter, with cables leading to the vertical beam antenna located
on a tower approximately sixty feet high, mounted at the rear of the
residence. Agent Perry conducted radio frequency power measurements at
the output of the transmitter, using an in-line wattmeter. Forward
power was measured at 30 watts, reflected power at 2\1/2\ watts. Agents
Perry and Wells concluded that the use of that amount of power and the
use of an external antenna exceeded the limits set forth in part 15 of
the rules, 47 CFR 15.239(b).
5. Keith Perry stated that he began operating the station in
February 1997. He voluntarily disconnected the power to the transmitter
during the inspection. Upon their return to the MADF vehicle, Agents
Perry and Wells confirmed that the signal earlier detected was no
longer present on the unit's receiving equipment.
6. On June 25, 1997, Agent Perry sent a letter under his signature
by certified mail to Keith Perry.1 In pertinent part, the
letter stated:
\1\ The June 25, 1997, letter mistakenly asserted that Keith
Perry had transmitted on 87.9 MHz. By letter dated September 26,
1997, Agent Perry corrected the frequency referenced to reflect
transmission on 88.5 MHz.
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Radio transmitting equipment (other than certain low powered
devices operated in accordance with Part 15 of the Rules) may be
operated only upon issuance by this Commission of a station license
covering such equipment. Unlicensed operation is a violation of
Section 301 of the Act, 47 U.S.C. Sec. 301, and may subject the
operator to substantial monetary fines, in rem forfeiture action,
and criminal sanctions including imprisonment. See 47 U.S.C.
Secs. 401, 501, 503, 510. Because unlicensed operation creates a
danger of interference to important radio communications services
and may subject the operator to severe penalties, we emphasize the
importance of complying strictly with these legal requirements.
Operation of radio transmitting equipment without proper authority
granted by the Commission should cease immediately. (emphasis in the
original).
7. The letter informed Keith Perry that he need not reply but, if
desired, he could submit relevant information to the Commission's
Houston Field Office. On July 24, 1997, Keith Perry submitted a written
response to the warning letter. Keith Perry argued that: the FCC has no
power to regulate FM broadcast stations operating with transmitter
power of less than 100 watts; Agents Perry and Wells trespassed on his
property and illegally parked their vehicle in front of his home; the
FCC has no authority to inspect unlicensed stations; Agent Perry had no
authority to operate the transmitter while conducting his tests; the
agents slandered Keith Perry to the Leander Police Department; and
insufficient postage was placed on the warning letter.
8. On August 29, 1997, Agent Perry was on duty in Austin, Texas, in
a MADF vehicle. Agent Perry detected a radio signal on the frequency
95.9 MHz in the area of north Austin. Further monitoring led Agent
Perry to conclude that the signal originated from a vertical beam
antenna mounted on a tower on the rear of the residence located at 607
Osage Drive, Leander, Texas. No contact was made with Keith Perry at
that time. On March 20, 1997, using direction finding techniques, Agent
Perry confirmed that Keith Perry was continuing to operate.
9. 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 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 Keith Perry has violated
and may currently be violating Section 301 of the Act.
Ordering Clauses
10. Accordingly, It is ordered that, pursuant to Section 312(c) of
the Act, Keith Perry 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 Keith Perry 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, Keith Perry should be ordered to cease and desist
from violating Section 301 of the Act.
11. It Is further ordered that, pursuant to Section 312(d) of the
Act, 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.
12. It is further ordered that this Order to Show Cause shall
constitute a Bill of Particulars with respect to all foregoing issues.
[[Page 26598]]
13. It is further ordered that, to avail himself of the opportunity
to be heard, Keith Perry, pursuant to Section 1.91(c) of the 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.
14. It is further ordered that, without regard as to whether the
hearing record warrants an order that Keith Perry cease and desist from
violating the Act or the rules, it shall be determined, pursuant to
Section 503(b) of the Act, whether an Order For Forfeiture in an amount
not to exceed $11,000 2 shall be issued against Keith Perry
for the alleged violations of Section 301 of the Act.
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\2\ 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 Secs. 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).
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15. 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 Act and
Section 1.80 of the rules.
16. 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.
17. 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:
Keith Perry, 607 Osage Drive, Leander, Texas 78641.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-12813 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P
