[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26599-26601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12812]


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FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-63]


Order To Show Cause and Notice of Opportunity for Hearing

AGENCY: Federal Communications Commission.

ACTION: Notice.

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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 98-47.

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 Offices of the Commission.

FOR FURTHER INFORMATION CONTACT: Norman Goldstein and James Shook, Mass 
Media Bureau, (202) 418-1430, e-mail [email protected] and 
[email protected]

SUPPLEMENTARY INFORMATION:
Released: April 6, 1998
    1. The Commission has under consideration information concerning 
the transmission of radio signals without a license by Mark A. Rabenold 
(``Rabenold''). For the reasons that follow, we order Rabenold 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

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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 the rules.
    2. Background. On August 21, 1997, Michael P. Rothe (``Rothe'') and 
Donald C. Roberson (``Roberson''), employees of the Commission's 
Compliance and Information Bureau (``CIB'') stationed in the Seattle 
Field Office observed an unauthorized FM broadcast station operating on 
105.1 MHz in the Oroville, Washington, area. Using directional finding 
techniques, they determined that the signals came from an antenna at 
the back of the building at 1214 Main Street, Oroville. Rothe and 
Roberson measured the strength of the signal from two locations. At a 
distance of 103 meters from the antenna, the signal strength was 
measured at 6.5 mV/m, while, from a slightly different angle and at a 
distance of 99.3 meters, the signal strength was measured at 5.8 mV/m. 
Rothe and Roberson calculated that these values are the equivalent of 
223,900 ``V/m at 3 meters and 180,400 ``V/m at 3 meters, respectively, 
both of which exceed the limit for unlicensed operation in the FM band 
of 250 ``V/m at 3 meters prescribed by Section 15.239 of the rules, 47 
C.F.R. Sec. 15.239. Further investigation by Rothe and Roberson 
appeared to indicate that the operator was Rabenold.
    3. That same day, Rothe and Roberson located Rabenold. Rabenold 
informed them that he would let them inspect the station if they filled 
out a questionnaire he had prepared. After Rothe and Roberson refused 
to complete the questionnaire, Rabenold stated he would not let them 
inspect the station. Rothe and Roberson then handed Rabenold a letter, 
which advised Rabenold that no license had been issued by the 
Commission to him for broadcast operations on 105.1 MHz. The letter 
also stated that:

    [O]peration of radio transmitting equipment without a valid 
radio station authorization and/or refusal to allow inspection of 
your radio station constitutes violation of the Federal laws cited 
above and could subject the owner, operator or anyone aiding and 
abetting this illegal operation to an administrative penalty of 
monetary forfeiture under Section 503(b) of the Act, 47 U.S.C. 
503(b) * * * UNLICENSED OPERATION OF THIS RADIO STATION MUST BE 
DISCONTINUED IMMEDIATELY. (emphasis in original).

    The letter also solicited Rabenold's comments on the matter and 
advised him that he could request an interview with the Commission to 
discuss the matter.
    By certified letter dated September 25, 1997, Dennis J. Anderson 
(``Anderson''), District Director of the Seattle Field Office, informed 
Rabenold that Commission agents had determined that he was operating 
illegally on 105.1 MHz in that the field strength of the signal 
transmitted by Rabenold exceeded the maximum authorized for operation 
without a license by Section 15.239(b) of the rules. 47 CFR 15.239(b). 
Anderson's letter advised Rabenold immediately to cease operating the 
unlicensed FM radio broadcast station and that operation of a radio 
transmitter without proper authorization could subject Rabenold to a 
forfeiture as well as criminal penalties. Anderson's letter requested a 
reply describing the steps that had been taken to ensure that illegal 
broadcasts did not recur. Commission records indicate that Rabenold 
appears to have signed the return receipt but that he did not submit a 
response. On March 12, 1998, Roberson confirmed that Rabenold's 
unauthorized transmissions are continuing.
    5. 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, Paras.  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 Rabenold has violated and 
may currently be violating Section 301 of the Act.

Ordering Clauses

    6. Accordingly, it is ordered that, pursuant to Section 312(c) of 
the Act, Mark A. Rabenold 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 Mark A. Rabenold 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, Mark A. Rabenold should be ordered to cease and 
desist from violating Section 301 of the Act.
    7. 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.
    8. It is further ordered that this Order to Show Cause shall 
constitute a Bill of Particulars with respect to all foregoing issues.
    9. It is further ordered that, to avail himself of the opportunity 
to be heard, Mark A. Rabenold, pursuant to Sections 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.
    10. It is further ordered that, without regard as to whether the 
hearing record warrants an order that Mark A. Rabenold 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 1 shall be issued against Mark 
A. Rabenold for the alleged violations of Section 301 of the Act.
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    \1\  This 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).
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    11. 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.
    12. 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

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Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554.
    13. 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: Mark A. Rabenold, 
960 Swanson Mill Road, Tonasket, Washington 98855.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-12812 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P