[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26596-26598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12813]


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FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-62]


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 98-46.

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, e-mail [email protected] and 
[email protected]

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. Sec. 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. Sec. 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

[[Page 26597]]

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 Sec. 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 2\1/2\ 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:

    \1\ The 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.
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    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. Sec. 301, and may subject the 
operator to substantial monetary fines, in rem forfeiture action, 
and criminal sanctions including imprisonment. See 47 U.S.C. 
Secs. 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. Sec. 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 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.

[[Page 26598]]

    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.
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    \2\ This figure reflects the maximum appropriate forfeiture 
amount in light of the specific facts at issue. See 47 U.S.C. 
Sec. 503(b)(2)(C); 47 CFR Secs. 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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    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