26596 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 / Notices

3This figure reflects the maximum appropriate

forfeiture amount in light of the specific facts at

issue. See 47 U.S.C. § 503(b)(2)(C); 47 CFR

1.80(b)(3), (b)(4), (b)(5); see also In re the

Commission’s Forfeiture Policy Statement and

Amendment of Section 1.80 of the Rules to

Incorporate the Forfeiture Guidelines, 12 FCC Rcd

17087 (1997)(petitions for reconsideration pending).

Arnold again was advised that operation

of the radio station violated federal law,

and he was ordered to cease operations.

Arnold shut the station off at 1:02 pm,

as the agents were leaving.

Subsequently, by letter dated August 25,

1997, Carpenter alleged that Arnold had

resumed broadcasting on 95.3 MHz. On

September 9, 1997, Carpenter

telephoned District Director Anderson

in the CIB Seattle Field Office,

reiterating his complaint that Arnold’s

unlicensed transmissions were

continuing. On March 21, 1998, at 10:00

am, Roberson confirmed that Arnold’s

transmissions were in fact continuing

and that the signal levels far exceeded

Part 15 limits.

6. Discussion. Section 301 of the Act,

47 U.S.C. § 301, provides in pertinent

part: It is the purpose of this Act, among

other things, to maintain the control of

the United States over all the channels

of radio transmission. * * * No 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 * * * to

another place in the same State * * *

except under and in accordance with

this Act and with a license in that behalf

granted under the provisions of this Act.

Anyone transmitting radio

transmissions in the United States must

have authority from the Commission to

do so. See 47 U.S.C. § 301; U.S. v.

Medina, 718 F. Supp. 928 (S.D. Fla.

1989); U.S. v. Weiner, 701 F.Supp. 15

(D.Mass. 1988), aff’d, 887 F.2d 259 (1st

Cir. 1989); Stephen Paul Dunifer, 11

FCC Rcd 718, 720–21, ¶¶ 7–9 (1995)

(regarding Commission’s licensing

requirement); and Order to Show Cause

and Notice of Apparent Liability, 50 FR

20603, published May 17, 1985 (Alan H.

Weiner). As the facts recited above

reflect, it appears that Arnold has

violated and may currently be violating

Section 301 of the Act.

Ordering Clauses

7. Accordingly, It Is Ordered that,

pursuant to Section 312(c) of the Act,

Lewis B. Arnold Is Directed To Show

Cause why he should not be ordered to

Cease And Desist from violating Section

301 of the Act, at a hearing to be held

at a time and location specified in a

subsequent Order, upon the following

issues:

1. To determine whether Lewis B.

Arnold has transmitted radio energy

without appropriate authorization in

violation of Section 301 of the Act.

2. To determine whether, based on the

evidence adduced pursuant to the

preceding issue, Lewis B. Arnold should

be ordered to cease and desist from

violating Section 301 of the Act.

8. It Is further ordered that, pursuant

to Section 312(d) of the

Communications Act of 1934, as

amended, both the burden of proceeding

with the introduction of evidence and

the burden of proof shall be upon the

Compliance and Information Bureau

with respect to issues 1 and 2.

9. It Is further ordered that this Order

to Show Cause shall constitute a Bill of

Particulars with respect to all foregoing

issues.

10. It Is further ordered that, to avail

himself of the opportunity to be heard,

Lewis B. Arnold, pursuant to Sections

1.91(c) of the Commission’s Rules, in

person or by attorney, Shall File in

triplicate with the Commission within

twenty (20) days of the mailing of this

Order, a written appearance stating that

he will appear at the hearing and

present evidence on the matters

specified in this Order.

11. It Is further ordered that, without

regard as to whether the hearing record

warrants an order that Lewis B. Arnold

cease and desist from violating the Act

or the rules, it shall be determined,

pursuant to Section 503(b) of the

Communications Act of 1934, as

amended, whether an Order For

Forfeiture in an amount not to exceed

$11,000 3 shall be issued against Lewis

B. Arnold for the alleged violations of

Section 301 of the Act.

12. It is further ordered that in

connection with the possible forfeiture

liability noted above, this document

constitutes a notice of opportunity for

hearing pursuant to Section 503(b) of

the Communications Act of 1934, as

amended, and Section 1.80 of the

Commission’s Rules.

13. It is further ordered that a copy of

each document filed in this proceeding

subsequent to the date of adoption of

this Order Shall Be Served on the

counsel of record appearing on behalf of

the Chief, Compliance and Information

Bureau. Parties may inquire as to the

identity of such counsel by calling the

Compliance and Information Bureau at

(202) 418–1100, TTY (202) 418–2544.

Such service Shall Be Addressed to the

named counsel of record, Compliance

and Information Bureau, Federal

Communications Commission, 1919 M

Street, N.W., Washington, D.C. 20554.

14. It is further ordered that the Office

of Public Affairs, Reference Operations

Division of the Commission send a copy

of this Order by Certified Mail—Return

Receipt Requested to: Lewis B. Arnold,

N 103 4th Street East, 2741 Flowery

Trail Road, Chewelah, Washington

99109.

Also forward to: Lewis B. Arnold, The

Independent, P.O. Box 5, Chewelah,

Washington 99109.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–12811 Filed 5–12–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

[FCC 98–62]

Order To Show Cause and Notice of

Opportunity for Hearing

AGENCY: Federal Communications

Commission.

ACTION: Notice.

SUMMARY: The Federal Communications

Commission will hold a hearing to

determine whether to issue a Cease and

Desist Order, and whether a forfeiture

will be imposed for the unlicensed

operation of a radio station in violation

of the Communications Act in docket

case CI 98–46.

DATES: Prehearing on May 20, 1998, 9:00

am; Hearing on June 30, 1998, 10:00 am.

ADDRESSES: All pleadings and papers

must be mailed to Office of the

Secretary, 1919 M Street, N.W., Room

222, Washington, D.C. 20554; Hearings

held at Offices of the Commission.

FOR FURTHER INFORMATION CONTACT:

Norman Goldstein and James Shook,

Mass Media Bureau, (202) 418–1430, email ngoldste@fcc.gov and

jshook@fcc.gov

SUPPLEMENTARY INFORMATION:

Released: April 6, 1998

1. The Commission has under

consideration information concerning

Keith Perry’s transmission of radio

signals without a license. For the

reasons that follow, we order Keith

Perry to show cause, pursuant to

Section 312(c) of the Communications

Act of 1934, as amended (the ‘‘Act’’), 47

U.S.C. § 312(c), why we should not

issue a cease and desist order which

prohibits further unauthorized

transmissions on his part. Also,

pursuant to Section 1.80(g) of the

Commission’s Rules (the ‘‘rules’’), 47

C.F.R. § 1.80(g), this order constitutes a

notice of opportunity for hearing to

determine whether, in addition to or as

an alternative to the issuance of a cease

and desist order, a forfeiture should be
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 / Notices 26597

1The June 25, 1997, letter mistakenly asserted

that Keith Perry had transmitted on 87.9 MHz. By

letter dated September 26, 1997, Agent Perry

corrected the frequency referenced to reflect

transmission on 88.5 MHz.

imposed for violations of the Act and

the rules.

2. Background. On March 24, 1997,

the Compliance and Information

Bureau’s (CIB) Dallas Field Office

received a complaint from the Texas

Association of Broadcasters concerning

an unauthorized radio station operating

on 88.5 MHz, northwest of Austin,

Texas. On June 6, 1997, Loyd P. Perry

(‘‘Agent Perry’’), the Houston, Texas,

resident agent of the CIB and CIB Dallas

Field Office Director James D. Wells

(‘‘Agent Wells’’) were on duty in the

Austin, Texas, area in a mobile

automatic direction finding (MADF)

vehicle. Agents Perry and Wells

detected a radio signal on the frequency

88.5 MHz in the area of north Austin.

Further monitoring led Agents Perry

and Wells to determine that the signal

originated from a vertical beam antenna

mounted on a tower on the rear of the

residence located at 607 Osage Drive,

Leander, Texas, over fifteen miles from

the location Agents Perry and Wells first

detected the signal. Because the radio

station utilized an external antenna over

fifty feet in height and the signal could

be received over fifteen miles away,

Agents Perry and Wells concluded that

the radio transmitting equipment

exceeded the lower power limits set

forth in Part 15 of the rules, 47 CFR

§ 15.239(b).

3. At approximately 12:47 p.m.,

Agents Perry and Wells approached the

residence identified above. Leander

Police Officer Tim Meaner was on hand

to assist if necessary. Keith Perry

identified himself as owner of the

residence. Mr. Keith Perry admitted the

operation of radio transmitting

equipment at the residence, but refused

entry into the residence. After a lengthy

conversation, Keith Perry directed

Agents Loyd Perry and Wells to a

window at the east side of the residence

where the agents were allowed to view

the transmitting equipment.

4. Agents Perry and Wells observed a

satellite dish mounted on the exterior of

the house and audio cables from an

unknown source, feeding into a small

transmitter. Keith Perry stated that the

cables provided audio from a satellite

source received by the satellite dish on

the residence. The transmitter, in turn,

fed into another small transmitter, with

cables leading to the vertical beam

antenna located on a tower

approximately sixty feet high, mounted

at the rear of the residence. Agent Perry

conducted radio frequency power

measurements at the output of the

transmitter, using an in-line wattmeter.

Forward power was measured at 30

watts, reflected power at 21⁄2 watts.

Agents Perry and Wells concluded that

the use of that amount of power and the

use of an external antenna exceeded the

limits set forth in part 15 of the rules,

47 CFR 15.239(b).

5. Keith Perry stated that he began

operating the station in February 1997.

He voluntarily disconnected the power

to the transmitter during the inspection.

Upon their return to the MADF vehicle,

Agents Perry and Wells confirmed that

the signal earlier detected was no longer

present on the unit’s receiving

equipment.

6. On June 25, 1997, Agent Perry sent

a letter under his signature by certified

mail to Keith Perry.1 In pertinent part,

the letter stated:

Radio transmitting equipment (other than

certain low powered devices operated in

accordance with Part 15 of the Rules) may be

operated only upon issuance by this

Commission of a station license covering

such equipment. Unlicensed operation is a

violation of Section 301 of the Act, 47 U.S.C.

§ 301, and may subject the operator to

substantial monetary fines, in rem forfeiture

action, and criminal sanctions including

imprisonment. See 47 U.S.C. §§ 401, 501,

503, 510. Because unlicensed operation

creates a danger of interference to important

radio communications services and may

subject the operator to severe penalties, we

emphasize the importance of complying

strictly with these legal requirements.

Operation of radio transmitting equipment

without proper authority granted by the

Commission should cease immediately.

(emphasis in the original).

7. The letter informed Keith Perry that

he need not reply but, if desired, he

could submit relevant information to the

Commission’s Houston Field Office. On

July 24, 1997, Keith Perry submitted a

written response to the warning letter.

Keith Perry argued that: the FCC has no

power to regulate FM broadcast stations

operating with transmitter power of less

than 100 watts; Agents Perry and Wells

trespassed on his property and illegally

parked their vehicle in front of his

home; the FCC has no authority to

inspect unlicensed stations; Agent Perry

had no authority to operate the

transmitter while conducting his tests;

the agents slandered Keith Perry to the

Leander Police Department; and

insufficient postage was placed on the

warning letter.

8. On August 29, 1997, Agent Perry

was on duty in Austin, Texas, in a

MADF vehicle. Agent Perry detected a

radio signal on the frequency 95.9 MHz

in the area of north Austin. Further

monitoring led Agent Perry to conclude

that the signal originated from a vertical

beam antenna mounted on a tower on

the rear of the residence located at 607

Osage Drive, Leander, Texas. No contact

was made with Keith Perry at that time.

On March 20, 1997, using direction

finding techniques, Agent Perry

confirmed that Keith Perry was

continuing to operate.

9. Discussion. Section 301 of the Act,

47 U.S.C. § 301, provides in pertinent

part:

It is the purpose of this Act, among other

things, to maintain the control of the United

States over all the channels of radio

transmission. * * * No 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 * * * to

another place in the same State * * * except

under and in accordance with this Act and

with a license in that behalf granted under

the provisions of this Act.

Anyone transmitting radio

transmissions in the United States must

have authority from the Commission to

do so. See U.S. v. Medina, 718 F. Supp.

928 (S.D. Fla. 1989); U.S. v. Weiner, 701

F.Supp. 15 (D.Mass. 1988), aff’d, 887

F.2d 259 (1st Cir. 1989); Stephen Paul

Dunifer, 11 FCC Rcd 718, 720–21, ¶¶ 7–

9 (1995) (regarding Commission’s

licensing requirement); and Order to

Show Cause and Notice of Apparent

Liability, 50 FR 20603, published May

17, 1985 (Alan H. Weiner). As the facts

recited above reflect, it appears that

Keith Perry has violated and may

currently be violating Section 301 of the

Act.

Ordering Clauses

10. Accordingly, It is ordered that,

pursuant to Section 312(c) of the Act,

Keith Perry Is Directed To Show Cause

why he should not be ordered to Cease

And Desist from violating Section 301 of

the Act, at a hearing to be held at a time

and location specified in a subsequent

Order, upon the following issues:

1. To determine whether Keith Perry

has transmitted radio energy without

appropriate authorization in violation of

Section 301 of the Act.

2. To determine whether, based on the

evidence adduced pursuant to the

preceding issue, Keith Perry should be

ordered to cease and desist from

violating Section 301 of the Act.

11. It Is further ordered that, pursuant

to Section 312(d) of the Act, both the

burden of proceeding with the

introduction of evidence and the burden

of proof shall be upon the Compliance

and Information Bureau with respect to

issues 1 and 2.

12. It is further ordered that this Order

to Show Cause shall constitute a Bill of

Particulars with respect to all foregoing

issues.
26598 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 / Notices

2This figure reflects the maximum appropriate

forfeiture amount in light of the specific facts at

issue. See 47 U.S.C. § 503(b)(2)(C); 47 CFR

§§ 1.80(b)(3), (b)(4), (b)(5); see also In re the

Commission’s Forfeiture Policy Statement and

Amendment of Section 1.80 of the Rules to

Incorporate the Forfeiture Guidelines, 12 FCC Rcd

17087 (1997)(petitions for reconsideration pending).

13. It is further ordered that, to avail

himself of the opportunity to be heard,

Keith Perry, pursuant to Section 1.91(c)

of the rules, in person or by attorney,

Shall File in triplicate with the

Commission within twenty (20) days of

the mailing of this Order, a written

appearance stating that he will appear at

the hearing and present evidence on the

matters specified in this Order.

14. It is further ordered that, without

regard as to whether the hearing record

warrants an order that Keith Perry cease

and desist from violating the Act or the

rules, it shall be determined, pursuant

to Section 503(b) of the Act, whether an

Order For Forfeiture in an amount not

to exceed $11,000 2 shall be issued

against Keith Perry for the alleged

violations of Section 301 of the Act.

15. It is further ordered that in

connection with the possible forfeiture

liability noted above, this document

constitutes a notice of opportunity for

hearing pursuant to Section 503(b) of

the Act and Section 1.80 of the rules.

16. It is further ordered that a copy of

each document filed in this proceeding

subsequent to the date of adoption of

this Order Shall Be Served on the

counsel of record appearing on behalf of

the Chief, Compliance and Information

Bureau. Parties may inquire as to the

identity of such counsel by calling the

Compliance and Information Bureau at

(202) 418–1100, TTY (202) 418–2544.

Such service Shall Be Addressed to the

named counsel of record, Compliance

and Information Bureau, Federal

Communications Commission, 1919 M

Street, N.W., Washington, D.C. 20554.

17. It Is Further Ordered that the

Office of Public Affairs, Reference

Operations Division of the Commission

send a copy of this Order by Certified

Mail—Return Receipt Requested to:

Keith Perry, 607 Osage Drive,

Leander, Texas 78641.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–12813 Filed 5–12–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

[FCC 98–60]

Order To Show Cause and Notice of

Opportunity for Hearing

AGENCY: Federal Communications

Commission.

ACTION: Notice.

SUMMARY: The Federal Communications

Commission will hold a hearing to

determine whether to issue a Cease and

Desist Order, and whether a forfeiture

will be imposed for the unlicensed

operation of a radio station in violation

of the Communications Act in docket

case CI 98–44.

DATES: Prehearing on May 19, 1998, 9:00

am; Hearing on June 23, 1998, 10:00 am.

ADDRESSES: All pleadings and papers

must be mailed to Office of the

Secretary, 1919 M Street, N.W., Room

222, Washington, D.C. 20554; Hearings

held at Office of the Commission.

FOR FURTHER INFORMATION CONTACT:

Norman Goldstein and James Shook,

Mass Media Bureau, (202) 418–1430, email ngoldste@fcc.gov and

jshook@fcc.gov

SUPPLEMENTARY INFORMATION:

Released: April 6, 1998.

1. The Commission has under

consideration information concerning

the transmission of radio signals

without a license by Joseph Frank Ptak

(‘‘Ptak’’). For the reasons that follow, we

order Ptak to show cause, pursuant to

Section 312(c) of the Communications

Act of 1934, as amended (the ‘‘Act’’), 47

U.S.C. 312(c), why we should not issue

a cease and desist order which prohibits

further unauthorized transmissions on

his part. Also, pursuant to Section

1.80(g) of the Commission’s Rules (the

‘‘rules’’), 47 CFR 1.80(g), this order

constitutes a notice of opportunity for

hearing to determine whether, in

addition to or as an alternative to the

issuance of a cease and desist order, a

forfeiture should be imposed for

violations of the Act and rules.

2. Background. On April 9, 1997,

Loyd P. Perry (‘‘Perry’’), one of the

Houston, Texas, resident agents of the

Commission’s Compliance and

Information Bureau (‘‘CIB’’), received

information from the San Marcos

(Texas) Police Department concerning

an unauthorized radio station operating

on 105.9 MHz. Perry and CIB Dallas

Director James D. Wells (‘‘Wells’’)

proceeded to the San Marcos area in

mobile automatic direction finder

(‘‘MADF’’) unit FC–660. About 10 miles

south of San Marcos, Perry and Wells

detected a radio signal on 105.9 MHz,

which increased in strength as they

approached San Marcos. Further

monitoring led Perry and Wells to

conclude that the signal originated from

a vertical dipole antenna mounted on a

tower situated on the grounds of a

residence located at 505 Patricia Drive,

San Marcos. Further, considering the

height above ground of the antenna and

the distance from the antenna to the

location where they first detected the

signal, Perry and Wells concluded that

the signal strength exceeded 250 μV/m

at 3 meters, the limit for unlicensed

operation as set forth in Section

15.239(b) of the rules, 47 CFR 15.239(b).

3. At approximately 3:18 p.m., Perry

and Wells heard a signal identified as

‘‘KIND’’ on 105.9 MHz. At

approximately 3:29 p.m., Perry and

Wells, accompanied by San Marcos

Police Officer Royce Smith, entered

upon the property at 505 Patricia Drive

and asked to speak with the owner. Ptak

identified himself as such. Perry then

requested permission to inspect the

radio transmission equipment to which

Ptak granted his request.

4. In a bedroom of the residence,

Perry and Wells observed a transmitter

with a cable exiting a window. The

cable, in turn, was connected to a

vertical dipole antenna mounted on a 25

to 30 foot tower adjacent to the rear of

the residence. An unconnected

wattmeter was located next to the

transmitter. Ptak then acknowledged the

following: (1) There is no license for the

facilities; (2) the transmitter output was

30 watts; (3) operation had begun on

March 26, 1997, and had continued 24

hours per day since March 26; and (4)

the station was operated by the Hayes

County Guardian newspaper and staffed

with volunteers. Perry, thereupon,

orally advised Ptak that operation of the

radio station violated federal law, and

he ordered Ptak to cease operations.

Ptak refused. Thereafter, at 4:00 p.m. on

April 9, Perry and Wells again identified

the source of a signal on 105.9 MHz as

the facilities observed at 505 Patricia

Drive.

5. On April 17, 1997, Perry sent a

letter under his signature by certified

mail to Ptak. In pertinent part, the letter

stated:

Operation of radio transmitting equipment,

other than certain low powered devices

operated in accordance with Part 15 of the

Rules, may be operated only upon issuance

by this Commission of a station license.

Unlicensed operation is a violation of Section

301 of the Act, 47 U.S.C. 301, and may

subject the operator to substantial monetary

fines, in rem forfeiture action, and criminal

sanctions including imprisonment. See 47

U.S.C. 401, 501, 503, 510. Because