**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-BS-095       |
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| Richard Clouden                  | ) | NAL/Acct. No.: 200832260003     |
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| Boston, MA                       | ) | FRN: 0017641580                 |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

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

> Released: April 8, 2008

By the District Director, Boston Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("*NAL*"), we
    find that Richard Clouden ("Clouden") apparently willfully and
    repeatedly violated Section 301 of the Communication Act of 1934, as
    amended ("Act"),[^1] by operating an unlicensed radio transmitter on
    the frequency 101.3 MHz in the Dorchester neighborhood of Boston,
    MA. We conclude, pursuant to Section 503(b) of the Act,[^2] that
    Clouden is apparently liable for a forfeiture in the amount of ten
    thousand dollars (\$10,000).

# BACKGROUND

2.  On July 10, 2007, the Boston Office received a complaint from
    counsel for a licensed station regarding interference caused by an
    apparent unlicensed station operating on 101.3 MHz in Boston, MA.

3.  On July 11, 2007, agents from the FCC's Boston Office, using a
    mobile direction finding vehicle, monitored the frequency 101.3 MHz
    in Boston, MA. The agents observed a radio broadcast on 101.3 MHz
    and identified the source of the transmissions as an antenna mounted
    on the roof of a multi-unit commercial building at 616 Blue Hill
    Ave., Boston, MA. The agents took field strength measurements and
    determined that the signals being broadcast exceeded the limits for
    operation under Part 15 of the Commission's rules ("Rules")[^3] and
    therefore the station required a license. An agent searched
    Commission databases and found no evidence of a Commission
    authorization for this operation on 101.3 MHz in Boston, MA.

4.  On July 12, 2007, the agents again observed a signal on 101.3 MHz in
    Boston, MA and, using mobile direction finding techniques,
    identified the source of the signal as the same transmitter site
    located at 616 Blue Hill Ave., Boston, MA. The agents entered one of
    the businesses at the site location and spoke with the building
    owner, who stated he did not have access to the room where the
    transmitter is located, but that the station is being run by Richard
    Clouden. The agents then spoke to Clouden at his place of work,
    Technique Collision, which is located at 10 Old Rd. Boston,
    MA 02121. Clouden stated to the agents that he owns and operates the
    radio station. When agents asked to conduct a station inspection,
    Clouden stated that he did not have access to the transmitter site
    at the time. Clouden also informed agents that the studio was
    located at 11 Humphreys Street, which agents later determined was
    located in the Roxbury section of Boston, MA.

5.  On July 26, 2007, the Boston Office issued a Notice of Unlicensed
    Operation ("NOUO") to Clouden for the unlicensed operation on July
    11, 2007, in Boston, MA. The NOUO was sent via certified mail and
    regular mail to his home address. No response was ever received.

6.  On August 15, 2007, agents observed a signal on 101.3 MHz in Boston,
    MA and, using mobile direction finding techniques, identified the
    source of the signal as the same transmitter site located at 616
    Blue Hill Ave., Boston, MA. The agents took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Rules and
    therefore required a license. The agent searched Commission
    databases and found no evidence of a Commission authorization for
    operation on 101.3 MHz in Boston, MA. Also on this date, agents
    attempted an inspection at the alleged studio location at 11
    Humphreys Street, but no one answered when agents knocked on the
    door.

7.  On March 11, 2008, agents again observed a signal on 101.3 MHz in
    Boston, MA and, using mobile direction finding techniques,
    identified the source of the signal as the same transmitter site
    located at 616 Blue Hill Ave., Boston, MA. The agents took field
    strength measurements and determined that the signals being
    broadcast exceeded the limits for operation under Part 15 of the
    Rules and therefore required a license.

8.  After taking the field strength measurements, agents proceeded to
    Clouden's place of work, Technique Collision. Clouden again admitted
    to operating the station and stated that the station's transmitter
    is located on top of the building at 616 Blue Hill Avenue. When
    agents asked to inspect the transmitter site, Clouden again stated
    that he did not have access to the site at the time.

9.  On March 17, 2008, agents returned to Clouden's place of work and
    asked to conduct an inspection of the station's studio, which
    Clouden previously had indicated was located at 11 Humphreys Street.
    The agents followed Clouden by car to 11 Humphreys St. Suite 3 and
    conducted an inspection of the station's studio equipment. During
    the inspection, Clouden again admitted to operating the station.

# DISCUSSION

10. 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) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^4] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^5]

11. Section 301 of the 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 Rules and with a license issued by the
    Commission. Agents determined that, on July 11, 2007, July 12, 2007,
    August 15, 2007, and March 11, 2008, Clouden operated radio
    transmission equipment at 616 Blue Hill Avenue in Boston, MA without
    the required Commission authorization. Clouden admitted to such
    operation during interviews with agents on July 12, 2007, March 11,
    2008, and March 17, 2008. In light of Clouden's admission and his
    continued operation on August 15, 2007 and March 11, 2008, even
    after receiving a written warning on July 26, 2007, we find that the
    violation was willful. The violation occurred on more than one day,
    therefore, it is repeated.

12. Based on the evidence before us, we find that Clouden apparently
    willfully and repeatedly violated Section 301 of the Act by
    operating an FM radio transmitter without a license on 101.3 MHz in
    Boston, MA.

13. 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 is \$10,000.[^6] 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.[^7] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Clouden is apparently
    liable for a (\$10,000) forfeiture.

# ORDERING CLAUSES

14. 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, Richard Clouden is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of ten thousand dollars (\$10,000) for violations of
    Section 301 of the Act.[^8]

15. **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, Richard Clouden **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

16. 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 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.

17. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, Boston Office, 1
    Batterymarch Park, Quincy, MA, 02169 and must include the NAL/Acct.
    No. referenced in the caption.

18. 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.

19. 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 Richard Clouden at his
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

Dennis Loria

District Director

Boston Office

Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: Section 15.239 of the Rules 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 micro volts per
    meter ("μV/m") at three meters. 47 C.F.R. § 15.239. Measurements
    showed that the field strength of the station's signal exceeded the
    permissible level for a non-licensed Part 15 transmitter.

[^4]: 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).

[^5]: 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."

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.