**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-08-NY-034       |
|                                  |   |                                 |
| Joaquim Barbosa                  | ) | NAL/Acct. No. 200832380005      |
|                                  |   |                                 |
| Licensee of Amateur Radio        | ) | FRN 0017458753                  |
| Station N2KBJ                    |   |                                 |
|                                  | ) |                                 |
| Elizabeth, NJ                    |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: February 26, 2008

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("*NAL*"), we
    find that Joaquim Barbosa ("Barbosa"), licensee of amateur radio
    station N2KBJ, in Elizabeth, New Jersey, apparently willfully and
    repeatedly violated Section 301 of the Communications Act of 1934,
    as amended ("Act")[^1] by operating radio transmitting equipment on
    the frequency 296.550 MHz without Commission authorization. We
    conclude, pursuant to Section 503(b) of the Communications Act of
    1934, as amended ("Act"),[^2] that Barbosa is apparently liable for
    a forfeiture in the amount of twenty thousand dollars (\$20,000).

# BACKGROUND

2.  On January 24, 2008, the Commission received a complaint that an
    authorized United States government user was receiving harmful
    interference from an unauthorized station operating on 296.550 MHz
    in the Elizabeth, New Jersey area. The harmful interference was
    obstructing and interfering with a government communications system.

3.  On February 1, 2008, an agent from the FCC's New York Office
    monitored 296.550 MHz using remote monitoring equipment in the New
    York area and observed radio transmissions on the frequency in the
    area of Elizabeth, New Jersey.

4.  On February 5, 2008, using a mobile direction-finding vehicle, an
    agent observed transmissions on the frequency 296.550 MHz coming
    from the area of Elizabeth, New Jersey. The agent heard the
    transmissions while driving in Staten Island, approximately 3.5
    miles away from the source of transmissions that would subsequently
    be determined. Using mobile direction-finding techniques, the agent
    determined that the source of the transmissions was coming from the
    vicinity of North Avenue and Jackson Avenue in Elizabeth, NJ.

5.  On both February 6 and 7, 2008, agents again detected transmissions
    on the frequency 296.550 MHz and, using mobile direction-finding
    techniques, determined that the source of the transmissions was a
    private residence at 921 Jackson Avenue, Elizabeth, NJ. On February
    7, an agent confirmed with the complainant that those transmissions
    were audible on the government communications system. An agent
    subsequently checked the City of Elizabeth Tax Assessor's records
    and determined that the owner of the property at 921 Jackson Avenue
    is Joaquim Barbosa. The agents observed several antennas of the type
    used for amateur radio communications mounted on the house and on
    the property in back of the house. An agent later checked the FCC
    amateur database and determined that Barbosa holds an Amateur Extra
    Class license, call sign N2KBJ.

6.  On February 11, 2008, agents again detected transmissions on the
    frequency 296.550 MHz and, using mobile direction-finding
    techniques, determined that the source of the transmissions was the
    residence at 921 Jackson Avenue. Immediately after determining the
    source of the transmissions, the agents conducted a radio station
    inspection with Barbosa at the Jackson Avenue residence. During the
    inspection, agents positively identified Barbosa from his driver's
    license. Barbosa also showed the agents his amateur radio license.
    During the inspection, the agents observed a transceiver whose
    display showed that it was set to the transmit frequency of 296.550
    MHz. The agents measured the transmitter output power at 17 watts
    and an output frequency of 296.550 MHz. The agents observed that the
    transmitter was connected to an antenna mounted on the back of the
    house. Barbosa admitted to operating the station and the
    transmitting equipment observed during the inspection for the last
    four to six months, and stated that he owned the equipment. As a
    licensed amateur operator, Barbosa stated that he knew that the
    frequency 296.550 MHz was not an authorized U.S. amateur frequency
    and he knew that he did not have a license to operate on the
    frequency. The agents advised Barbosa of the violation for operation
    of the unlicensed station and informed him that his operation was
    causing harmful interference to a U.S. Government system. The agents
    issued a hand-delivered Notice of Unlicensed Operation to Barbosa
    which he signed as acknowledgement of receipt.

7.  According to Commission records, Joaquim Barbosa, 921 Jackson
    Avenue, Elizabeth, New Jersey, 07201, was issued an Amateur Extra
    Class, amateur radio operator license, call sign N2KBJ, on August
    31, 1998,[^3] which will expire on August 31, 2008. Pursuant to
    Section 97.103(a) of the Rules, licensed amateur radio operators are
    responsible for the proper operation of their stations in accordance
    with the Commission's Rules.[^4] Licensed amateur operators are
    authorized to operate on the frequencies listed Section 97.301 of
    the Rules, as designated by their operator class and license.[^5] In
    order to use designated frequencies in the amateur bands, amateur
    operators must follow the frequency sharing requirements in Section
    97.301 of the Rules and the United States Table of Frequency
    Allocations found in Sections 2.105 and 2.106 of the Rules.[^6]
    Pursuant to the Table of Allocations, the 267-322 MHz Band is
    allocated solely for Federal Government use.[^7] In the band 255 --
    328.6 MHz, the fixed and mobile services are limited to the military
    services.[^8] The use of the band 235 - 322 MHz is allocated on a
    primary basis to the mobile-satellite service, limited to military
    operations.[^9] Based on the agents' experience with the observed
    signal levels, transmitter power, antennas and the distance over
    which the signals were heard, the agents determined that the signals
    broadcast on February 5, 6, 7 and 11, 2008 exceeded the limits for
    operation under Part 15 of the Commission's Rules ("Rules") and
    therefore required a license.[^10] As a non-governmental entity,
    Barbosa is not eligible to receive a license to operate in the
    267-322 MHz Band.

# DISCUSSION

8.  Section 503(b) of the 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. The term "willful" as used in
    Section 503(b) of the Act has been interpreted to mean simply that
    the acts or omissions are committed knowingly.[^11] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^12]

9.  Section 301 of the Act requires 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. In particular, Section
    301 states that "\[n\]o 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, Territory, or possession of
    the United States or in the District of Columbia to another place in
    the same State, Territory, possession, or District; . . . except
    under and in accordance with this chapter and with a license in that
    behalf granted under the provisions of this chapter."[^13] FCC
    agents determined that, on February 6, 7 and 11, 2008, an unlicensed
    radio station operated on 296.550 MHz from Barbosa's residence in
    Elizabeth, New Jersey. During an inspection on February 11, 2008,
    Barbosa admitted to operating radio transmitting equipment on
    296.550 MHz from his residence for the last four to six months.
    Barbosa also admitted to the agents that he knew he was operating on
    a frequency that was not authorized for use by amateur licensees.
    Based on the evidence before us, we find that Barbosa apparently
    willfully and repeatedly violated Section 301 of the Act by
    operating radio transmission apparatus without a license.

10. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* ("*Forfeiture Policy Statement*"), and Section 1.80 of
    the Rules, the base forfeiture amount for operation without an
    instrument of authorization for the service is \$10,000.[^14] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(E) of
    the Act, which include the nature, circumstances, extent, and
    gravity of the violations, and with respect to the violator, the
    degree of culpability, and history of prior offenses, ability to
    pay, and other such matters as justice may require.[^15] Based on
    the criteria in Section 503(b)(2)(D) of the Act, and the upward
    adjustment criteria in the Forfeiture Policy Statement, we find that
    an upward adjustment in the amount of \$10,000 is warranted.[^16]
    Because Barbosa holds an Amateur Extra Class license, which requires
    the highest level of technical knowledge and affords the licensee
    the most frequency privileges, we find that his apparent willful and
    repeated operation on an unauthorized frequency that caused harmful
    interference to a United States government communications system is
    particularly egregious. Applying the *Forfeiture Policy Statement*,
    Section 1.80 of the Rules, and the statutory factors to the instant
    case, we conclude that Barbosa is apparently liable for a \$20,000
    forfeiture.

# ORDERING CLAUSES

11. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Joaquim Barbosa is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of twenty thousand dollars (\$20,000) for violations
    of Section 301 of the Act.[^17]

12. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Joaquim Barbosa **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

13. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Account Number and FRN
    Number referenced above. Payment by check or money order may be
    mailed to Federal Communications Commission, P.O. Box 979088, St.
    Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
    Bank -- Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention
    Plaza, St. Louis, MO 63101. Payment\[**s**\] by wire transfer may be
    made to ABA Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to:  Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
    20554.   Please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any questions
    regarding payment procedures.

14. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, New York, NY 10014 and must include the NAL/Acct.
    No. referenced in the caption.

15. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices (\"GAAP\"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

16. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Joaquim Barbosa at his
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Northeast Region

Enforcement Bureau

[^1]: U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: In accordance with Part 97 of the Commission's Rules, operation of
    an amateur station requires an amateur operator license grant from
    the FCC. Before receiving a license grant, an applicant must pass an
    examination which contains one telegraphy (Morse Code) element and
    three written elements which establish the applicant's level of
    operational and technical ability in performing properly the duties
    of an amateur service licensee. The class for which each examinee is
    qualified is determined by the degree of skill and knowledge in
    operating a station that the examinee demonstrates at the
    examination. There are six classes of amateur operator licenses. The
    higher the license class, the more expertise the licensee must
    demonstrate and the greater the frequency privileges the amateur
    operator is authorized. In ascending order, the classes of amateur
    operator license grants are: Novice, Technician, Technician Plus,
    General, Advanced and Amateur Extra. *See 1998 Biennial Regulatory
    Review -- Amendment of Part 97 of the Commission's Amateur Service
    Rules*, 13 FCC Rcd 15798 (1998).

[^4]: 47 C.F.R. § 97.103(a).

[^5]: 47 C.F.R. § 97.301.

[^6]: *See* 47 C.F.R. § 97.303, citing Sections 2.105, 2.106 of the
    Rules.

[^7]: *See* 47 C.F.R. § 2.106.

[^8]: 47 C.F.R. § 2.106, Federal Government Footnote G27.

[^9]: 47 C.F.R. § 2.106, Federal Government Footnote G100.

[^10]: Section 15.209 of the Rules provides that non-licensed
    broadcasting in the 216-960 MHz band is permitted only if the field
    strength of the transmission does not exceed 200 μV/m at three
    meters. 47 C.F.R. § 15.209. Devices compliant with Part 15 typically
    have a range of less than one mile and are certified for use by the
    FCC for power levels less than 0.5 Watts.

[^11]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term \'willful\',
    when used with reference to the commission or omission of any act,
    means the conscious and deliberate commission or omission of such
    act, irrespective of any intent to violate any provision of this Act
    or any rule or regulation of the Commission authorized by this
    Act...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^12]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term \'repeated\',
    when used with reference to the commission or omission of any act,
    means the commission or omission of such act more than once or, if
    such commission or omission is continuous, for more than one day."

[^13]: 47 U.S.C. § 301.

[^14]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^15]: 47 U.S.C. § 503(b)(2)(E).

[^16]: 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4); *see also*
    *Forfeiture Policy Statement*, 12 FCC Rcd at 17100 -- 01.

[^17]: 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.