[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26601-26602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12814]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 98-64]
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 98-48.
DATES: Prehearing on May 21, 1998, 9:00 am; Hearing on June 23, 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
jshook@fcc.gov
SUPPLEMENTARY INFORMATION:
Released: April 6, 1998.
1. The Commission has under consideration information concerning
the transmission of radio signals without a license by Jerry Szoka
(``Szoka''). For the reasons that follow, we order Szoka 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 November 4, 1996, James A. Bridgewater
(``Bridgewater''), the Detroit Field Office Director of the
Commission's Compliance and Information Bureau, received information
from Mark Krieger, Chairman of the Society of Broadcast Engineers,
concerning an unauthorized radio station operating as ``The Grid,'' on
96.9 MHz. On February 20, 1997, Bridgewater sent a letter under his
signature by certified mail to ``The Grid.'' In pertinent part, the
letter stated:
Unlicensed operation is a violation of Section 301 of the Act,
47 U.S.C. 301, and may subject the operator to substantial monetary
fines, in rem forfeiture action, and criminal sanctions including
imprisonment. See 47 U.S.C. 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
the legal requirements mentioned above. Operation of radio
transmitting equipment without proper authority granted by the
Commission should cease immediately. (Emphasis in the original).
The letter also informed ``The Grid'' that a response was required
within 15 days of receipt of the letter. On March 31, 1997, the
Commission received an unsigned reply dated March 26, 1997, from Szoka,
in which he acknowledged receipt of Bridgewater's letter and stated
that he would take necessary actions to meet FCC requirements. He also
urged the Commission to ignore the unlicensed operation because the
station is top quality, provides a much needed community service
without commercials, and is not interfering with other stations.
3. On June 11, 1997, Bridgewater sent Szoka a second warning letter
regarding the unlicensed operation on 96.9 MHz. That letter also
required a reply within 15 days of receipt. Commission records reveal
no response from Szoka.
4. Between June 18, 1997, and September 9, 1997, the Commission
received four additional complaints regarding the unlicensed broadcast
operation at 96.9 MHz. Each complaint indicated that unauthorized
transmissions were continuing.
5. On September 11, 1997, FCC Agents Patrick G. Patterson
(``Patterson'') and Paul S. Mako (``Mako'') drove to Cleveland, Ohio,
in a Commission mobile direction finding vehicle. At approximately 5:10
p.m., Patterson and Mako positively identified the location of the
transmitted signal as emanating from 1281 West 9th Street, Cleveland,
Ohio. This address is the location of ``The Grid,'' a commercial night
club. Patterson and Mako observed that the transmitting antenna was
located at the top of the 4 1/2 story building on the north side and
approximately half way between the front and back of the building.
Patterson and Mako also determined that the coaxial cable connected to
the antenna entered the building housing the establishment known as
``The Grid.'' The agents took a field strength measurement of the
signal identified as ``The Grid.'' The measurement was made
approximately 171 meters (561 feet) from the transmitting antenna and
recorded a value of 35.55 millivolts/meter (33,550 microvolts/meter).
This measurement far exceeds the limit set out in Section 15.239(b) of
the rules, 47 CFR 15.239(b), which 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. The 96.9 FM
signal was also monitored via the direction finding vehicle's normal
AM/FM radio by Patterson and Mako while exiting the Cleveland area and
heading west on I-90. The signal could be heard for approximately 18.6
miles. On Friday, March 19, 1998, at 4:57 pm, FCC Agent Patterson
confirmed that the station was still operating.
6. Discussion. Section 301 of the Act, 47 U.S.C. 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 Szoka 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,
[[Page 26602]]
Jerry Szoka 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:
a. To determine whether Jerry Szoka has transmitted radio energy
without appropriate authorization in violation of Section 301 of the
Act.
b. To determine whether, based on the evidence adduced pursuant to
the preceding issue, Jerry Szoka 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
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 a and b.
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, Jerry Szoka, pursuant to Sections 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.
11. It Is Further Ordered that, without regard as to whether the
hearing record warrants an order that Jerry Szoka 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 1 shall be issued against Jerry Szoka
for the alleged violations of Section 301 of the Act.
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\1\ This figure reflects the maximum appropriate forfeiture
amount in light of the specific facts at issue. See 47 U.S.C.
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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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 Act and
Section 1.80 of the 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: Jerry Szoka, The
Grid, 1281 West 9th Street, Cleveland, Ohio 44113.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 98-12814 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P
