[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26598-26599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12815]


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FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-60]


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 98-44.

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, 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 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 
V/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

[[Page 26599]]

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 Ptak that he need not reply but, if 
desired, he could submit relevant information to Perry. Commission 
records reveal no response from Ptak.
    6. By a letter dated May 12, 1997 and transmitted via facsimile on 
May 13, 1997, a further complaint from the San Marcos Police Department 
concerning Ptak's unlicensed operation was received by Perry. Among 
other things, the complaint reflected that unauthorized transmissions 
by Ptak were continuing. Perry's investigations indicated that the 
unauthorized transmissions by Ptak were still ongoing. On March 20, 
1998, using direction finding techniques, Perry confirmed that Ptak was 
continuing to operate.
    7. 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 Ptak has violated and may 
currently be violating Section 301 of the Act.

Ordering Clauses

    8. Accordingly, It Is Ordered that, pursuant to Section 312(c) of 
the Act, Joseph Frank Ptak 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 Joseph Frank Ptak 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, Joseph Frank Ptak should be ordered to cease and 
desist from violating Section 301 of the Act.
    9. 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.
    10. It is further ordered that this Order to Show Cause shall 
constitute a Bill of Particulars with respect to all foregoing issues.
    11. It is further ordered that, to avail himself of the opportunity 
to be heard, Joseph Frank Ptak, 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.
    12. It is further ordered that, without regard as to whether the 
hearing record warrants an order that Joseph Frank Ptak 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 
Joseph Frank Ptak 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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    13. 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.
    14. 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.
    15. 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: Joseph Frank 
Ptak, 505 Patricia Drive, San Marcos, Texas 78666.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-12815 Filed 5-12-98; 8:45 am]
BILLING CODE 6712-01-P