[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26601-26602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12814]


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FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-64]


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 98-48.

DATES: Prehearing on May 21, 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 Jerry Szoka 
(``Szoka''). For the reasons that follow, we order Szoka 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 the rules.
    2. Background. On November 4, 1996, James A. Bridgewater 
(``Bridgewater''), the Detroit Field Office Director of the 
Commission's Compliance and Information Bureau, received information 
from Mark Krieger, Chairman of the Society of Broadcast Engineers, 
concerning an unauthorized radio station operating as ``The Grid,'' on 
96.9 MHz. On February 20, 1997, Bridgewater sent a letter under his 
signature by certified mail to ``The Grid.'' In pertinent part, the 
letter stated:

    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 
the legal requirements mentioned above. Operation of radio 
transmitting equipment without proper authority granted by the 
Commission should cease immediately. (Emphasis in the original).

The letter also informed ``The Grid'' that a response was required 
within 15 days of receipt of the letter. On March 31, 1997, the 
Commission received an unsigned reply dated March 26, 1997, from Szoka, 
in which he acknowledged receipt of Bridgewater's letter and stated 
that he would take necessary actions to meet FCC requirements. He also 
urged the Commission to ignore the unlicensed operation because the 
station is top quality, provides a much needed community service 
without commercials, and is not interfering with other stations.
    3. On June 11, 1997, Bridgewater sent Szoka a second warning letter 
regarding the unlicensed operation on 96.9 MHz. That letter also 
required a reply within 15 days of receipt. Commission records reveal 
no response from Szoka.
    4. Between June 18, 1997, and September 9, 1997, the Commission 
received four additional complaints regarding the unlicensed broadcast 
operation at 96.9 MHz. Each complaint indicated that unauthorized 
transmissions were continuing.
    5. On September 11, 1997, FCC Agents Patrick G. Patterson 
(``Patterson'') and Paul S. Mako (``Mako'') drove to Cleveland, Ohio, 
in a Commission mobile direction finding vehicle. At approximately 5:10 
p.m., Patterson and Mako positively identified the location of the 
transmitted signal as emanating from 1281 West 9th Street, Cleveland, 
Ohio. This address is the location of ``The Grid,'' a commercial night 
club. Patterson and Mako observed that the transmitting antenna was 
located at the top of the 4 1/2 story building on the north side and 
approximately half way between the front and back of the building. 
Patterson and Mako also determined that the coaxial cable connected to 
the antenna entered the building housing the establishment known as 
``The Grid.'' The agents took a field strength measurement of the 
signal identified as ``The Grid.'' The measurement was made 
approximately 171 meters (561 feet) from the transmitting antenna and 
recorded a value of 35.55 millivolts/meter (33,550 microvolts/meter). 
This measurement far exceeds the limit set out in Section 15.239(b) of 
the rules, 47 CFR 15.239(b), which allows unlicensed operation of a low 
power radio transmitter in the FM broadcast band provided the signal 
level is below 250 V/m at a distance of 3 meters. The 96.9 FM 
signal was also monitored via the direction finding vehicle's normal 
AM/FM radio by Patterson and Mako while exiting the Cleveland area and 
heading west on I-90. The signal could be heard for approximately 18.6 
miles. On Friday, March 19, 1998, at 4:57 pm, FCC Agent Patterson 
confirmed that the station was still operating.
    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 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 Szoka 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,

[[Page 26602]]

Jerry Szoka 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:
    a. To determine whether Jerry Szoka has transmitted radio energy 
without appropriate authorization in violation of Section 301 of the 
Act.
    b. To determine whether, based on the evidence adduced pursuant to 
the preceding issue, Jerry Szoka 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 
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 a and b.
    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, Jerry Szoka, 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.
    11. It Is Further Ordered that, without regard as to whether the 
hearing record warrants an order that Jerry Szoka 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 Jerry Szoka 
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 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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    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 Act and 
Section 1.80 of the 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: Jerry Szoka, The 
Grid, 1281 West 9th Street, Cleveland, Ohio 44113.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 98-12814 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P