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Author Topic: Kansas Ham Issued $10,000 Fine for Operation of Unlicensed Broadcast Station  (Read 4610 times)

Offline corq

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On December 5, Glen Rubash, KC0GPV, of Dwight, Kansas, was issued a $10,000 fine for what the FCC called “willfully and repeatedly” violating Section 301 of the Communications Act of 1934, as amended by operating an unlicensed radio transmitter on the frequency 88.3 MHz in Manhattan, Kansas.

In response to a complaint, agents from the FCC’s Kansas City Office used direction finding techniques to locate the source of radio frequency transmissions on the frequency 88.3 MHz. According to a Notice of Apparent Liability for Forfeiture issued on December 6, agents found an FM transmitting antenna mounted on a pole next to a residence in Manhattan, Kansas on September 26, 2012. The agents determined that the signals on 88.3 MHz exceeded the limits for operation under Part 15 of the Commission’s rules and therefore required a license. Part 15 sets forth the conditions and technical requirements under which certain radio transmission devices may be used without a license; specifically, Section 15.239 provides that non-licensed broadcasting in the 88-108 MHz band is permitted only if the field strength of the transmission does not exceed 250 μV/m at 3 meters. The FCC noted that its records showed that no authorization was issued to Rubash, or to anyone else for operation of an FM broadcast station at or near this location.

The next day, agents from the Kansas City Office again used direction finding techniques to confirm if the station was still operating on 88.3 MHz from the same location, and found that it was. The agents, accompanied by the property owner, inspected the unlicensed station’s antenna and transmitter located in a locked detached garage. “The property owner stated that he allowed Rubash to use the garage to operate the radio station and that he thought the operation was legal because Rubash told him that he was a licensed radio operator,” the forfeiture order stated. “Later that same day, Rubash spoke to an agent from the Kansas City Office via telephone and confirmed that he was an Extra class amateur licensee (assigned call sign KC0GPV). Rubash also admitted that he purchased the radio transmitter and that the station had been on the air for two months. Rubash added that he would not voluntarily relinquish the transmitter if asked to do so.” The FCC stated that this response demonstrated that Rubash had control over the station.

Section 503(b) of the Communications Act provides that any person “who willfully or repeatedly fails to comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation, or order issued by the Commission thereunder” shall be liable for a forfeiture penalty. Section 312(f)(1) of the Communications Act defines “willful” as the “conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.” According to the FCC, the term “repeated” means the commission or omission of such act more than once or for more than one day.

In addition, Section 301 of the Communications 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.” For the purposes of Section 301, the FCC noted that the word “operate” has been interpreted to mean both the technical operation of the station, as well as “the general conduct or management of a station as a whole, as distinct from the specific technical work involved in the actual transmission of signals.” In other words, the use of the word “operate” in Section 301 captures not just the “actual, mechanical manipulation of radio apparatus,” but also operation of a radio station generally. To determine whether an individual is involved in the general conduct or management of the station, the FCC noted that it can consider whether such individual exercises control over the station, which it has defined to include “...any means of actual working control over the operation of the [station] in whatever manner exercised.”

The FCC found sufficient evidence to establish that Rubash violated Section 301 of the Communications Act. Additionally, “because Rubash is a licensed Extra class amateur operator, he presumably was aware (or should have been aware) that operation of the radio transmitter required a license. The foregoing facts indicate that Rubash consciously operated and/or otherwise was involved in the general conduct or management of the unauthorized station.”

Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the rules, the FCC found that the base forfeiture amount for operation without an instrument of authorization is $10,000. In assessing the monetary forfeiture amount, the FCC noted that it must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Communications Act, “which include the nature, circumstances, extent, and gravity of the violations, 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.” Rubash has until January 4, 2013 to pay the $10,000 fine or file a written statement seeking reduction or cancellation of the proposed forfeiture.

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Offline Jolly Roger

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It says they (the FCC) were responding to a complaint; you don't suppose that someone with floppy ears made another phone call? Could he be sucking the fun from being a FM pirate as well?
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Offline corq

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FM pirates typically upset someone closer to home. Seems by the depth of the article that this guy may have been operating a while, and/or cheesed off someone there, and I'm thinking being an Extra class, he knew what he was doing and just kept doing it, hence the steep punishment. (My assumption, only)
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Offline ChrisSmolinski

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Check out the FCC enforcement page: http://transition.fcc.gov/eb/Headlines.html

They bust FM pirates on a regular basis. As Corq said, he appears to have been doing it for a while. He also told he FCC that "he would not voluntarily relinquish the transmitter if asked to do so". Probably not the smartest thing to say to the guy who decides if you get a nastygram or a $10k fine.

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Offline mr. mike

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I think this guy finally thought "I've been a ham X number of years, I can run an FM broadcast station." I'd love to know what his output wattage was.

Corq is right; the average FM pirate is shut down because of interference complaints, though there was one station  ("Deez Nuts 93.7" in Seattle, WA) that was shut down by a Clear Channel station (KUBE 93) because the pirate was stealing the licensed station's audience.
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Offline diymedia

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Actually, the average FM pirate is shut down due to *a* complaint - interference oftentimes doesn't factor into the equation at all. Read the Notices of Unlicensed Operation handed out by the FCC - they typically say, "this field office received a complaint of an unlicensed station on frequency x." That's all they need to begin action: a pirate's very existence is the violation.

Offline mr. mike

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Actually, the average FM pirate is shut down due to *a* complaint - interference oftentimes doesn't factor into the equation at all. Read the Notices of Unlicensed Operation handed out by the FCC - they typically say, "this field office received a complaint of an unlicensed station on frequency x." That's all they need to begin action: a pirate's very existence is the violation.

What the FCC says is usually boilerplate; what I was talking about were the n00b operators who didn't get a filter and their neighbors called the radio fuzz because the pirate signal was coming through their TV, and unfortunately you see more of those guys in the pirate FM field*. I know all it takes is one complaint to start the ball rolling, it's just where those complaints come from is important.

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* And in CB; I grew up in an area where there were two 11 meter machomen with the dirtiest linear amps in history - if you tried watching a faraway station and they keyed up, the picture went to static and you could hear their conversation.
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Does the FCC ever reveal the identity of the person who complained?

Actually, the average FM pirate is shut down due to *a* complaint - interference oftentimes doesn't factor into the equation at all. Read the Notices of Unlicensed Operation handed out by the FCC - they typically say, "this field office received a complaint of an unlicensed station on frequency x." That's all they need to begin action: a pirate's very existence is the violation.

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Should be a matter of public record.... at least it is in .ca unless there's cause for a publication ban.

Peace!

Offline diymedia

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Does the FCC ever reveal the identity of the person who complained?

Very, very seldom...if it is a licensed station, sometimes. Otherwise it's just a "we received a complaint" sort of thing.

You can try to FOIA info out of the FCC, but they're likely to deny, since the issuance of a NOUO is not "case closed"...the FCC often says its investigations are "ongoing" and thus won't release anything.

Offline mr. mike

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Does the FCC ever reveal the identity of the person who complained?

Very, very seldom...if it is a licensed station, sometimes. Otherwise it's just a "we received a complaint" sort of thing.

You can try to FOIA info out of the FCC, but they're likely to deny, since the issuance of a NOUO is not "case closed"...the FCC often says its investigations are "ongoing" and thus won't release anything.

I think all their pirate cases are "ongoing"; I tried to talk to the local FCC about an FM pirate they had harassed off the air the previous year, their agent said the case was still "open."
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Offline Nomad

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Oooof . . . $10,000 is a hefty fine indeed.

Offline diymedia

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Oooof . . . $10,000 is a hefty fine indeed.

Yeah, but collecting it is another matter. If you can prove to the FCC that you're financially unable to pay the fine, they are statutorily mandated to reduce or cancel it. Several FM pirates in Florida have had their fines knocked down from $10-20K to $250 or $500 because of this. Three years' of recent tax returns constitutes proof.

If you just opt not to pay the fine, then the FCC must sue you in civil court for collection. Most U.S. District Attorneys have bigger fish to fry, so such cases are not high-priority. The collection process can thus take years...and the FCC's collection rate on such fines is pretty bad (less than half of *all* forfeitures, not just radio-piracy-related ones, are fully paid).

Offline Nomad

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Oooof . . . $10,000 is a hefty fine indeed.
If you just opt not to pay the fine, then the FCC must sue you in civil court for collection. Most U.S. District Attorneys have bigger fish to fry, so such cases are not high-priority. The collection process can thus take years...and the FCC's collection rate on such fines is pretty bad (less than half of *all* forfeitures, not just radio-piracy-related ones, are fully paid).


That's actually quite nice to know. Although I'm not really surprised. Always felt as if the FCC didn't have the muscle to 100% execute what the "Brain" wants it to. You think the FCC's collection rate is pretty bad? You should see my uncle Sam's . .  :P

 

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