**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-04-SF-150       |
|                                  |   |                                 |
| Raimundo P. Silva                | ) | NAL/Acct. No. 200532960001      |
|                                  |   |                                 |
| Licensee of Amateur Station      | ) | FRN 0009808163                  |
| KD6SXG                           |   |                                 |
|                                  | ) |                                 |
| Brentwood, California            |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: October 26, 2004

By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Raimundo P. Silva ("Silva"), licensee of Amateur Station
    KD6SXG, apparently willfully and repeatedly violated Section 301 of
    the Communications Act of 1934, as amended (\"Act\"),[^1] by
    operating on the frequency of 297.530 MHz without Commission
    authorization. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended,[^2] that Silva is apparently
    liable for a forfeiture in the amount of twenty thousand dollars
    (\$20,000).

**II. BACKGROUND**

2.  On April 12, 2004, the Commission's San Francisco Field Office
    received a complaint that an authorized United States government
    user was receiving harmful interference that obstructed and
    interfered with satellite communications from an unauthorized
    station operating on 297.530 MHz. On April 19, 2004, San Francisco
    Office field agents, using electronic direction finding techniques,
    detected transmissions on 297.530 MHz. The agents took bearings of
    the radio signal which indicated the source of the signal to be a
    station in the vicinity of the residence at 4691 Christenson Street,
    Brentwood, California. As the agents approached the Christenson
    Street address the bearings changed direction indicating that the
    radio transmitting device in use was mobile and was moving away from
    the area. The field agents continued to take bearings and followed
    the radio source from Brentwood to south of Antioch, California.
    Later that day, the agents detected the signal again and followed
    the bearings indicated by the direction finding equipment to the
    front of the residence at 4691 Christenson Street in Brentwood,
    California. There they saw Raimundo Pereira Silva sitting in a white
    pickup truck registered with the California Department of Motor
    Vehicles in his name at that address.[^3]

3.  On April 20, 2004, the field agents again detected transmissions on
    297.530 MHz, with bearings again indicating the source of the radio
    signal as the Christenson Street residence. Silva was sitting in the
    white pickup truck holding a radio transmitter microphone to his
    face. The bearings indicated the source of the radio transmissions
    was the white pickup truck.

4.  On April 22, 2004, the field agents detected transmissions on
    297.530 MHz and took bearings that indicated that the source of the
    signal was from the residence at 4691 Christenson Street, Brentwood,
    California.[^4] Later that day, the field agents again detected
    transmissions from the residence. The field agents detected Silva's
    transmissions emanating from the residence over six miles to the
    south and east of the Christenson Street address. The field agents
    also detected several transmissions made by Silva on 297.530 MHz on
    May 27, 2004, and May 28, 2004, while Silva was driving the white
    pickup truck. On May 27, 2004, the field agents detected
    transmissions by Silva over five miles from where he was
    transmitting. The field agents confirmed with the complainant that
    the transmissions on May 27, 2004 caused harmful interference to the
    authorized users. The field agents continued to monitor Silva's
    radio transmissions, detecting operations by Silva on 297.530 MHz on
    numerous occasions from September 22, 2004, to October 21, 2004. The
    authorized user also continued to report harmful interference during
    this interval.

5.  According to Commission records, Raimundo P. Silva, 4691 Christenson
    Street, Brentwood, California, was issued a General Class, amateur
    radio operator license with call sign KD6SXG, on February 23,
    1993.[^5] The license was renewed on October 31, 2003, and will
    expire on October 31, 2013. 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.[^6] 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.[^7] 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
    ("Table"), found in Sections 2.105 and 2.106[^8] of the Rules.[^9]
    The Table lists the use of the frequency band 267 -- 322 MHz as
    Federal Government only.[^10] In the band 255 -- 328.6 MHz, the
    fixed and mobile services are limited to the military services.[^11]
    The use of the band 235 - 322 MHz is allocated on a primary basis to
    the mobile-satellite service, limited to military operations.[^12] A
    review of Commission records reveals no record of a license for the
    use of 297.530 MHz issued to any individual or entity in the
    vicinity of Brentwood, California.

**III. DISCUSSION**

6.  Section 503(b) of the Act provides that any person who willfully
    fails to comply substantially with the terms and conditions of any
    license, or willfully 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.[^13] The
    term \"repeated\" means the commission or omission of such act more
    than once or for more than one day.[^14]

7.  Section 301 of the Act requires that no person shall use or operate
    any apparatus for the transmission of energy or communications or
    signal by radio except under and in accordance with this Act and
    with a license granted under the provisions of this Act.[^15] On
    April 19, 2004, April 20, 2004, April 22, 2004, May 27, 2004 and May
    28, 2004, Silva, without authorization, operated a radio
    transmitting apparatus[^16] on the frequency 297.530 MHz, a
    frequency reserved for United States government use. On numerous
    additional occasions from September 22, 2004, to October 21, 2004,
    Silva, without authorization, operated a radio transmitting
    apparatus on a frequency reserved for United States government use.
    Silva's unauthorized radio operations in April, May, September, and
    October, 2004, caused harmful interference that obstructed and
    interfered with satellite communications of authorized government
    users. As a licensed amateur operator, Silva is required to know
    which frequencies he is permitted to operate on. The frequency
    297.530 MHz is not one of those frequencies. However, Silva
    continually operated on the frequency 297.530 MHz without
    authorization. Therefore, Silva's violation was willful. His
    violation occurred on more than one day, therefore, it was repeated.

8.  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.[^17] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(D) 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.[^18] 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 of the base forfeiture amount of \$10,000 is
    warranted.[^19] Silva's apparent willful and repeated unlicensed and
    unauthorized radio operation in a restricted band is egregious.
    According to the evidence, Silva operates radio transmission
    equipment on a frequency reserved exclusively for the United States
    government. Silva's unauthorized radio operations cause harmful
    interference to the authorized users. Silva's radio operations on
    the restricted frequency have been ongoing for many months and
    continued into October, 2004. Considering the entire record and
    applying the factors listed above, we conclude a forfeiture in the
    amount of \$20,000 is appropriate.

**IV. ORDERING CLAUSES**

9.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311
    and 1.80 of the Commission\'s Rules, Raimundo P. Silva 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.[^20]

10. 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, Raimundo P. Silva shall
    pay the full amount of the proposed forfeiture or shall file a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

11. 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/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259.

12. The response, if any, must be mailed to San Francisco District
    Office, Western Region, Enforcement Bureau, Federal Communications
    Commission, 5653 Stoneridge Drive, Suite 105, Pleasanton,
    California, 94588, and must include the NAL/Acct. No. referenced in
    the caption.

13. 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.

14. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^21]

15. IT IS FURTHER ORDERED THAT a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, regular mail, and hand-delivered to Raimundo P.
    Silva, 4691 Christenson Street, Brentwood, California, 94513.

FEDERAL COMMUNICATIONS COMMISSION

Thomas N. VanStavern

District Director

San Francisco Office

Western Region

[^1]: 47 U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: California DMV records and drivers license photographs enabled the
    field agents to identify Silva as the man in the white pickup truck.

[^4]: At this time, the white Dodge pickup truck was present, but no one
    was in the vehicle.

[^5]: 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).

[^6]: 47 C.F.R. § 97.103(a).

[^7]: 47 C.F.R. § 97.301.

[^8]: 47 C.F.R. §§ 2.105, 2.106.

[^9]: *See* 47 C.F.R. § 97.303.

[^10]: 47 C.F.R. § 2.106.

[^11]: 47 C.F.R. § 2.106, Federal Government Footnote G27.

[^12]: 47 C.F.R. § 2.106, Federal Government Footnote G100.

[^13]: 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).

[^14]: 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.\"

[^15]: 47 U.S.C. § 301.

[^16]: The field agents detected the signal from Silva's transmission
    over five miles from the location of his radio apparatus. This would
    indicate that the radio transmitting device used by Silva is not
    compliant with Section 15.209(a) of the Rules. 47 C.F.R. §
    15.209(a). Part 15 devices, which are non-licensed, low power
    devices, typically have a range of less than one mile.

[^17]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^18]: 47 U.S.C. § 503(b)(2)(D).

[^19]: 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.

[^20]: 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^21]: *See* 47 C.F.R. § 1.1914.