[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26598-26599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12815]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 98-60]
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 98-44.
DATES: Prehearing on May 19, 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 Office 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 Joseph Frank
Ptak (``Ptak''). For the reasons that follow, we order Ptak 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 rules.
2. Background. On April 9, 1997, Loyd P. Perry (``Perry''), one of
the Houston, Texas, resident agents of the Commission's Compliance and
Information Bureau (``CIB''), received information from the San Marcos
(Texas) Police Department concerning an unauthorized radio station
operating on 105.9 MHz. Perry and CIB Dallas Director James D. Wells
(``Wells'') proceeded to the San Marcos area in mobile automatic
direction finder (``MADF'') unit FC-660. About 10 miles south of San
Marcos, Perry and Wells detected a radio signal on 105.9 MHz, which
increased in strength as they approached San Marcos. Further monitoring
led Perry and Wells to conclude that the signal originated from a
vertical dipole antenna mounted on a tower situated on the grounds of a
residence located at 505 Patricia Drive, San Marcos. Further,
considering the height above ground of the antenna and the distance
from the antenna to the location where they first detected the signal,
Perry and Wells concluded that the signal strength exceeded 250
V/m at 3 meters, the limit for unlicensed operation as set
forth in Section 15.239(b) of the rules, 47 CFR 15.239(b).
3. At approximately 3:18 p.m., Perry and Wells heard a signal
identified as ``KIND'' on 105.9 MHz. At approximately 3:29 p.m., Perry
and Wells, accompanied by San Marcos Police Officer Royce Smith,
entered upon the property at 505 Patricia Drive and asked to speak with
the owner. Ptak identified himself as such. Perry then requested
permission to inspect the radio transmission equipment to which Ptak
granted his request.
4. In a bedroom of the residence, Perry and Wells observed a
transmitter with a cable exiting a window. The cable, in turn, was
connected to a vertical dipole antenna mounted on a 25 to 30 foot tower
adjacent to the rear of the residence. An unconnected wattmeter was
located next to the transmitter. Ptak then acknowledged the following:
(1) There is no license for the facilities; (2) the transmitter output
was 30 watts; (3) operation had begun on March 26, 1997, and had
continued 24 hours per day since March 26; and (4) the station was
operated by the Hayes County Guardian newspaper and staffed with
volunteers. Perry, thereupon, orally advised Ptak that operation of the
radio station violated federal law, and he ordered Ptak to cease
operations. Ptak refused. Thereafter, at 4:00 p.m. on April 9, Perry
and Wells again identified the source of a signal on 105.9 MHz as the
facilities observed at 505 Patricia Drive.
5. On April 17, 1997, Perry sent a letter under his signature by
certified mail to Ptak. In pertinent part, the letter stated:
Operation of 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. 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
[[Page 26599]]
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 Ptak that he need not reply but, if
desired, he could submit relevant information to Perry. Commission
records reveal no response from Ptak.
6. By a letter dated May 12, 1997 and transmitted via facsimile on
May 13, 1997, a further complaint from the San Marcos Police Department
concerning Ptak's unlicensed operation was received by Perry. Among
other things, the complaint reflected that unauthorized transmissions
by Ptak were continuing. Perry's investigations indicated that the
unauthorized transmissions by Ptak were still ongoing. On March 20,
1998, using direction finding techniques, Perry confirmed that Ptak was
continuing to operate.
7. 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 Ptak has violated and may
currently be violating Section 301 of the Act.
Ordering Clauses
8. Accordingly, It Is Ordered that, pursuant to Section 312(c) of
the Act, Joseph Frank Ptak 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 Joseph Frank Ptak 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, Joseph Frank Ptak should be ordered to cease and
desist from violating Section 301 of the Act.
9. 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.
10. It is further ordered that this Order to Show Cause shall
constitute a Bill of Particulars with respect to all foregoing issues.
11. It is further ordered that, to avail himself of the opportunity
to be heard, Joseph Frank Ptak, 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.
12. It is further ordered that, without regard as to whether the
hearing record warrants an order that Joseph Frank Ptak 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
Joseph Frank Ptak 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 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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13. 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.
14. 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.
15. 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: Joseph Frank
Ptak, 505 Patricia Drive, San Marcos, Texas 78666.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-12815 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P
