Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-04-SF-305       |
|                                  |   |                                 |
| William Stephen Major            | ) | NAL/Acct. No. 200532960002      |
|                                  |   |                                 |
| Sacramento, California           | ) | FRN 0013442173                  |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: June 27, 2006 Released: June 29, 2006**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    William Stephen Major ("Major"), for willful and repeated violation
    of Section 301 of the Communications Act of 1934, as amended
    (\"Act\").[^1] On June 29, 2005, the Enforcement Bureau's San
    Francisco Office issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") in the amount of \$10,000 to Major after
    determining that Major willfully and repeatedly operated an
    unlicensed radio transmitter on 96.5 MHz in Sacramento, California.
    In this *Order*, we consider arguments raised by 916 Radio, an
    organization, which Major is president of, claiming responsibility
    for the violations, concerning Major's liability, 916 Radio's
    authority to operate the station, and its inability to pay the
    forfeiture.

# II. BACKGROUND

2.  On December 21, 2004, the Commission's San Francisco Office received
    information concerning an unauthorized broadcast station operating
    on 96.5 MHz in Sacramento, California. A review of the Commission's
    databases revealed no authorization for KNOZ to operate on 96.5 MHz
    in Sacramento, California.[^2]

3.  On January 5, 2005, agents from the San Francisco Office while in
    Sacramento, California observed a station on 96.5 MHz identifying as
    "KNOZ LP 96.5." The agents used mobile direction finding techniques
    to locate the broadcast transmissions to commercial office space at
    2207 16^th^ Street, Sacramento, California. The office entrance door
    had signage which read "MAJORSCREEN WORKS THE HOME OF KNOZ 96.5
    FM...HTTP://WWW.THE916COM\..." The agents took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Commissions
    Rules ("Rules")[^3] and therefore required a license. The agents
    knocked on the office door and were granted entry by an individual
    who subsequently identified himself as William Major. Major offered
    his business card which indicated he was associated with "KNOZ 96.5
    FM (916) Radio." In response to the agents' questions regarding the
    operation of the station, Major assumed responsibility for the
    station operation. Major could not produce a station license. Major
    stated that he would take the station off-the-air since he wanted to
    be in compliance so that he could apply for a low power FM station
    license. Major stated he had completed all associated paperwork and
    had been in contact with the Commission about the steps necessary to
    obtain a license. The agents served a Notice of Unlicensed Operation
    ("*Notice*") on Major. The *Notice*, which Major signed to
    acknowledge receipt, stated that the unlicensed operation of the
    radio station must be discontinued immediately, that operation of
    radio transmitting equipment without a valid radio station
    authorization constituted a violation of Section 301 of the Act,[^4]
    and that failure to stop the operation could result in various
    penalties, including forfeiture of the equipment. Monitoring by the
    San Francisco agents revealed that the signal on 96.5 MHz
    temporarily went off the air but resumed later in the afternoon on
    January 5, 2005.

4.  On January 12, 2005, an agent from the San Francisco Office again
    monitored and used mobile direction finding techniques to locate a
    broadcast transmission on 96.5 MHz emanating from the commercial
    office space at 2207 16^th^ Street, Sacramento, California. The
    transmission was identifying as "KNOZ LP 96.5." The agent made field
    strength measurements and determined that the signals being
    broadcast were essentially unchanged from the previous measurement.
    The measurements indicated that the station still exceeded the
    limits for operation under Part 15 of the Rules, and, therefore,
    still required a license.[^5] When the agent knocked on the office
    door, a male voice denied entry and the request for inspection
    because the owner was not present. The agent then left another
    Notice of Unlicensed Operation ("*Notice*"*)* at the office door.
    This *Notice* also stated that the unlicensed operation of the radio
    station must be discontinued immediately, that operation of radio
    transmitting equipment without a valid radio station authorization
    constituted a violation of Section 301, and that failure to stop the
    operation could result in various penalties, including forfeiture of
    the equipment. This *Notice* also informed Major that he was in
    violation of Section 303(n) of the Act[^6] for failing to allow the
    San Francisco agent to inspect the radio station. As the agent
    departed the area, he heard Major's voice on 96.5 MHz announcing
    that the FCC was at the door and was trying to shut the station
    down.

5.  On January 14, 2005, February 3, 2005, and March 15, 2005, agents
    from the San Francisco Office again monitored and used mobile
    direction finding techniques to locate broadcast transmissions on
    96.5 MHz emanating from the commercial office space at 2207 16^th^
    Street, Sacramento, California. During each observation, the
    transmission was identifying as "KNOZ LP 96.5." The agents made
    field strength measurements and determined that the signals being
    broadcast were essentially unchanged from the previous
    measurements.[^7] The measurements indicated that the station still
    exceeded the limits for operation under Part 15 of the Rules, and,
    therefore, still required a license.

6.  On June 29, 2005, the Enforcement Bureau's San Francisco Office
    issued a *NAL* in the amount of \$10,000 to Major.[^8] In the *NAL*,
    the San Francisco Office found that Major apparently willfully and
    repeatedly violated Section 301 of the Act by operating an
    unlicensed radio transmitter on 96.5 MHz in Sacramento, California.
    916 Radio filed a response on behalf of Major on July 28, 2005
    ("*Response*"). In its *Response*, 916 Radio essentially makes three
    claims: that it, and not Major, a volunteer employee, is responsible
    for the operation of the station; that it believed it had authority
    to operate until early January 2005 because it intended to file a
    low power FM application and was in compliance with the low power FM
    rules; and that the Commission's licensing scheme for low power FM
    radio stations is "egregiously unconstitutional." 916 Radio also
    states that it does not have the ability to pay the forfeiture and
    requests that the forfeiture be reduced or cancelled.

# III. DISCUSSION

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^9] Section 1.80 of the
    Rules,[^10] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^11] In examining the *Response*, Section 503(b) of the
    Act requires that the Commission take into account the nature,
    circumstances, extent and gravity of the violation 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.[^12]

8.  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.[^13] Neither Major nor
    916 Radio claim to have a Commission license to operate an FM
    broadcast station.

9.  In the *Response*, 916 Radio argues that it, and not Major, is
    responsible for the unlicensed operation described in the *NAL,* and
    that Major is a volunteer employee of 916 Radio.[^14] Major, and not
    916 Radio, is the subject of this forfeiture proceeding. During the
    inspection of the station on January 5, 2005, Major indicated to the
    San Francisco agents that he was responsible for the station. Major
    also demonstrated control of the station by taking the station off
    the air after the agents left that day, although monitoring by the
    agents revealed that the station resumed broadcasting later that
    afternoon. We have previously held that because Section 301 of the
    Act provides that "no person shall use or operate"[^15] radio
    transmission equipment, liability for unlicensed operation may be
    assigned to any individual taking part in the operation of the
    unlicensed station, regardless of who else may be responsible for
    the operation.[^16] Therefore, 916 Radio's claim of responsibility
    does not shield Major from liability. Further, to the extent that
    916 Radio is speaking on behalf of Major, we note that neither it
    nor Major supply any evidence to refute the facts described in the
    *NAL*.[^17]

10. 916 Radio also argues that it believed it had authority to operate
    until early January 2005 because it intended to file a low power FM
    application and was in compliance with the low power FM rules. 916
    Radio states that it filed an application for a low power FM license
    and request for waiver of "any and all \[\] rules that would
    prohibit the processing of said license" with the Commission on
    March 17, 2005, but never received a response. The last window for
    filing applications for low power FM licenses in California closed
    on June 8, 2000.[^18] Section 73.817 of the Rules specifically
    states that "\[a\]pplications submitted after the deadline will be
    dismissed with prejudice as untimely."[^19] Neither Major nor 916
    Radio provide any evidence showing that the application and request
    for waiver, filed almost five years after the last relevant low
    power FM filing window closed, were ever received by the Commission.
    916 Radio further states, in both the *Response* and the purported
    March 17, 2005 waiver request, that it was told by Commission staff
    that it could continue to operate its station as long as it complied
    with all FCC Rules while waiting for a filing window to open to
    apply for a license.[^20] The Commission has consistently held that
    applicants are responsible for compliance with the Commission's
    Rules and that they should not rely on informal oral opinions from
    Commission staff.[^21] Additionally, Major received two *Notices*,
    as detailed above, warning him that his operation on 96.5 MHz
    violated Section 301 of the Act, and 916 Radio acknowledges that the
    operations on 96.5 MHz since late January 2005 have been "outside
    the FCC's interpretations of FCC Rules and Federal Law."[^22]
    Consequently, we find that none of 916 Radio's efforts to obtain a
    low power FM license negate nor warrant reduction of Major's
    liability for operating a radio station without a Commission
    license.

11. 916 Radio also alleges that the Commission's licensing scheme for
    low power FM radio stations is "egregiously unconstitutional." We
    note that to the extent the constitutionality of the low power FM
    licensing scheme[^23] has been challenged, it has been found to be
    constitutional.[^24]

12. 916 Radio also states that it is a non-profit corporation with no
    ability to pay the proposed forfeiture. Again, we note that this
    forfeiture is proposed against Major, not 916 Radio. In the *NAL*,
    the San Francisco Office instructed Major, if he sought cancellation
    or reduction of the forfeiture, to supply:

    \(1\) 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.[^25]

    Major submitted no documentation that reflects his current financial
    status. Therefore, he has provided us with no basis to support
    cancellation or reduction of the forfeiture based on his inability
    to pay.[^26]

13. Finally, we note that neither Major nor 916 Radio have made any
    effort since the issuance of the *NAL* to cease operations on 96.5
    MHz in Sacramento, California. Despite 916 Radio's statement that it
    "recogniz\[es\] it must leave the airwaves until properly
    licensed,"[^27] further investigation by the San Francisco Office
    reveals that "KNOZ" continues to broadcast on 96.5 MHz in
    Sacramento.[^28]

14. We have examined the *Response* to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that Major
    willfully and repeatedly violated Section 301 of the Act.
    Considering the entire record and the factors listed above, we find
    that neither reduction nor cancellation of the proposed \$10,000
    forfeiture is warranted.

# IV. ORDERING CLAUSES

15. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, William
    Stephen Major **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of \$10,000 for willfully and repeatedly violating Section 301 of
    the Act.[^29]

16. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^30] 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 Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911- 6106. Requests for full payment under an installment
    plan should be sent to: Associate Managing Director -- Financial
    Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
    20554.[^31]

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    William Stephen Major at his address of record, and his counsel of
    record, Stephen C. Sanders, Esquire, and Robert Monterrosa, Esquire.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: According to Commission records, there is a pending application
    for a construction permit for a FM translator, filed by Eastern
    Sierra Broadcasting, for operation on 96.5 MHz in Sacramento,
    California. *See* File No. BNPFT-20030317KKK.

[^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 μV/m at three
    meters. 47 C.F.R. § 15.239. On January 5, 2005, the measurements
    indicated that the signal was 1,894 times greater than the maximum
    permissible level for a non-licensed Part 15 transmitter.

[^4]: 47 U.S.C. § 301.

[^5]: The measurements made on January 12, 2005, indicated that the
    signal was 1,788 times greater than the maximum permissible level
    for a non-licensed Part 15 transmitter.

[^6]: 47 U.S.C. § 303(n).

[^7]: The measurements made on January 14, 2005, indicated that the
    signal was 1,850 times greater than the maximum permissible level
    for a non-licensed Part 15 transmitter. The measurements made on
    February 3, 2005, indicated that the signal was 1,614 times greater
    than the maximum permissible level and the measurements made on
    March 15, 2005, indicated that the signal was 1,322 times greater
    than the maximum permissible level.

[^8]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200532960002 (Enf. Bur., Western Region, San Francisco Office,
    released June 29, 2005).

[^9]: 47 U.S.C. § 503(b).

[^10]: 47 C.F.R. § 1.80.

[^11]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^12]: 47 U.S.C. § 503(b)(2)(D).

[^13]: 47 U.S.C. § 301.

[^14]: 916 Radio states that it is a non-profit corporation,
    incorporated in California. As part of the *Response*, 916 Radio
    includes letters and cards from supporters, some of which are
    addressed to both Major and "KNOZ." We also note that on the low
    power FM application that 916 Radio attached to its *Response,*
    Major is listed as the president of 916 Radio.

[^15]: 47 U.S.C. § 301.

[^16]: *Jean L. Senatus*, Forfeiture Order, DA 05-2376, 2005 WL 2105321
    (rel. September 1, 2005). 916 Radio readily admits that it does not
    hold a Commission license and that it is responsible for the
    transmissions on 96.5 MHz. Therefore, nothing in this current
    forfeiture proceeding bars us from taking future enforcement action
    against 916 Radio if the unlicensed operation continues.

[^17]: In response to a Notice of Apparent Liability, the "respondent
    will be afforded a reasonable period of time (usually 30 days from
    the date of the notice) to show, in writing, why a forfeiture
    penalty should not be imposed or should be reduced, or to pay the
    forfeiture. Any showing as to why the forfeiture should not be
    imposed or should be reduced shall include a detailed factual
    statement and such documentation and affidavits as may be
    pertinent." Section 1.80(f)(3) of the Rules. 47 C.F.R. § 1.80(f)(3).

[^18]: *Public Notice: Low Power FM Filing Window Deadline Extended*, 15
    FCC Rcd 9533 (2000).

[^19]: 47 C.F.R. § 73.870(b). Waivers will only be granted for "good
    cause shown." 47 C.F.R. § 1.3.

[^20]: We note that 916 Radio, by continuing to operate an unlicensed
    station, after receiving warnings from the San Francisco Office, was
    not in compliance with the Commission's Rules when it filed the
    March 17, 2005 waiver request and application. *See* 47 C.F.R. §
    73.854 ("No application for an LPFM station may be granted unless
    the applicant certifies, under penalty of perjury, that neither the
    applicant, nor any party to the application, has engaged in any
    manner including individually or with persons, groups, organizations
    or other entities, in the unlicensed operation of any station in
    violation of Section 301 of the Communications Act of 1934, as
    amended, 47 U.S.C. 301.")

[^21]: *Texas Media Group, Inc.* 5 FCC Rcd 2851, 2852 (1990) *aff'd sub
    nom* *Malkan FM Associates v. FCC*, 935 F.2d 1313 (D.C. Cir. 1991).

[^22]: *Response* at 11.

[^23]: 47 C.F.R. § 73.801 *et seq.*

[^24]: *See, e.g., Ruggiero v. FCC*, 317 F.3d 239 (D.C. Cir 2003).

[^25]: *NAL* at ¶ 13.

[^26]: *See* *Webnet Communications, Inc.*, 18 FCC Rcd 6870, 6878 ¶ 16
    (2003).

[^27]: *Response* at 11.

[^28]: San Francisco agents monitored the station's continued illegal
    operation in Sacramento on February 16, 2006, and confirmed their
    findings by visiting the station's website: http://www.the916.com
    (visited June 25, 2006).

[^29]: 47 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^30]: 47 U.S.C. § 504(a).

[^31]: *See* 47 C.F.R. § 1.1914.