Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Richard Clouden Boston, MA ) ) ) ) ) ) ) File Number: EB-07-BS-095 NAL/Acct. No.: 200832260003 FRN: 0017641580 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: April 8, 2008 By the District Director, Boston Office, Northeast Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that Richard Clouden (“Clouden”) apparently willfully and repeatedly violated Section 301 of the Communication Act of 1934, as amended (“Act”),1 by operating an unlicensed radio transmitter on the frequency 101.3 MHz in the Dorchester neighborhood of Boston, MA. We conclude, pursuant to Section 503(b) of the Act,2 that Clouden is apparently liable for a forfeiture in the amount of ten thousand dollars ($10,000). II. BACKGROUND 2. On July 10, 2007, the Boston Office received a complaint from counsel for a licensed station regarding interference caused by an apparent unlicensed station operating on 101.3 MHz in Boston, MA. 3. On July 11, 2007, agents from the FCC’s Boston Office, using a mobile direction finding vehicle, monitored the frequency 101.3 MHz in Boston, MA. The agents observed a radio broadcast on 101.3 MHz and identified the source of the transmissions as an antenna mounted on the roof of a multi- unit commercial building at 616 Blue Hill Ave., Boston, MA. The agents took field strength measurements and determined that the signals being broadcast exceeded the limits for operation under Part 15 of the Commission’s rules (“Rules”)3 and therefore the station required a license. An agent searched Commission databases and found no evidence of a Commission authorization for this operation on 101.3 MHz in Boston, MA. 1 47 C.F.R. § 301. 2 47 U.S.C. § 503(b). 3 Section 15.239 of the Rules provides that non-licensed broadcasting in the 88-108 MHz band is permitted only if the field strength of the transmission does not exceed 250 micro volts per meter (“?V/m”) at three meters. 47 C.F.R. § 15.239. Measurements showed that the field strength of the station’s signal exceeded the permissible level for a non-licensed Part 15 transmitter. Federal Communications Commission 2 4. On July 12, 2007, the agents again observed a signal on 101.3 MHz in Boston, MA and, using mobile direction finding techniques, identified the source of the signal as the same transmitter site located at 616 Blue Hill Ave., Boston, MA. The agents entered one of the businesses at the site location and spoke with the building owner, who stated he did not have access to the room where the transmitter is located, but that the station is being run by Richard Clouden. The agents then spoke to Clouden at his place of work, Technique Collision, which is located at 10 Old Rd. Boston, MA 02121. Clouden stated to the agents that he owns and operates the radio station. When agents asked to conduct a station inspection, Clouden stated that he did not have access to the transmitter site at the time. Clouden also informed agents that the studio was located at 11 Humphreys Street, which agents later determined was located in the Roxbury section of Boston, MA. 5. On July 26, 2007, the Boston Office issued a Notice of Unlicensed Operation (“NOUO”) to Clouden for the unlicensed operation on July 11, 2007, in Boston, MA. The NOUO was sent via certified mail and regular mail to his home address. No response was ever received. 6. On August 15, 2007, agents observed a signal on 101.3 MHz in Boston, MA and, using mobile direction finding techniques, identified the source of the signal as the same transmitter site located at 616 Blue Hill Ave., Boston, MA. The agents took field strength measurements and determined that the signals being broadcast exceeded the limits for operation under Part 15 of the Rules and therefore required a license. The agent searched Commission databases and found no evidence of a Commission authorization for operation on 101.3 MHz in Boston, MA. Also on this date, agents attempted an inspection at the alleged studio location at 11 Humphreys Street, but no one answered when agents knocked on the door. 7. On March 11, 2008, agents again observed a signal on 101.3 MHz in Boston, MA and, using mobile direction finding techniques, identified the source of the signal as the same transmitter site located at 616 Blue Hill Ave., Boston, MA. The agents took field strength measurements and determined that the signals being broadcast exceeded the limits for operation under Part 15 of the Rules and therefore required a license. 8. After taking the field strength measurements, agents proceeded to Clouden’s place of work, Technique Collision. Clouden again admitted to operating the station and stated that the station’s transmitter is located on top of the building at 616 Blue Hill Avenue. When agents asked to inspect the transmitter site, Clouden again stated that he did not have access to the site at the time. 9. On March 17, 2008, agents returned to Clouden’s place of work and asked to conduct an inspection of the station’s studio, which Clouden previously had indicated was located at 11 Humphreys Street. The agents followed Clouden by car to 11 Humphreys St. Suite 3 and conducted an inspection of the station’s studio equipment. During the inspection, Clouden again admitted to operating the station. III. DISCUSSION 10. Section 503(b) of the Act provides that any person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation or order issued by the Commission thereunder, shall be liable for a forfeiture penalty. The term “willful” as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.4 The term “repeated” means the 4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that “[t]he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Federal Communications Commission 3 commission or omission of such act more than once or for more than one day.5 11. Section 301 of the Act states that no person shall use or operate any apparatus for the transmission of energy or communications or signals by radio within the United States except under and in accordance with the Rules and with a license issued by the Commission. Agents determined that, on July 11, 2007, July 12, 2007, August 15, 2007, and March 11, 2008, Clouden operated radio transmission equipment at 616 Blue Hill Avenue in Boston, MA without the required Commission authorization. Clouden admitted to such operation during interviews with agents on July 12, 2007, March 11, 2008, and March 17, 2008. In light of Clouden’s admission and his continued operation on August 15, 2007 and March 11, 2008, even after receiving a written warning on July 26, 2007, we find that the violation was willful. The violation occurred on more than one day, therefore, it is repeated. 12. Based on the evidence before us, we find that Clouden apparently willfully and repeatedly violated Section 301 of the Act by operating an FM radio transmitter without a license on 101.3 MHz in Boston, MA. 13. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base forfeiture amount for operation without an instrument of authorization is $10,000.6 In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to the violator, the degree of culpability, and history of prior offenses, ability to pay, and other such matters as justice may require.7 Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors to the instant case, we conclude that Clouden is apparently liable for a ($10,000) forfeiture. IV. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules, Richard Clouden is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for violations of Section 301 of the Act.8 15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Richard Clouden SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 16. Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Account Number and FRN Number referenced above. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that “[t]he term 'repeated', when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.” 6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. 7 47 U.S.C. § 503(b)(2)(E). 8 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80. Federal Communications Commission 4 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). Requests for full payment under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. 17. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Northeast Region, Boston Office, 1 Batterymarch Park, Quincy, MA, 02169 and must include the NAL/Acct. No. referenced in the caption. 18. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices ("GAAP"); or (3) some other reliable and objective documentation that accurately reflects the petitioner’s current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted. 19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Richard Clouden at his address of record. FEDERAL COMMUNICATIONS COMMISSION Dennis Loria District Director Boston Office Northeast Region Enforcement Bureau