Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey ” San Francisco, California ) ) ) ) ) ) ) File Number: EB-09-SF-0031 NAL/Acct. No.: 200932960004 FRN: 0019070572 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: August 31, 2009 By the District Director, San Francisco Office, Western Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey,” ("Roberts") in San Francisco, California, apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended,1 by operating an unlicensed broadcast radio station on 87.9 MHz in San Francisco, California. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("Act"),2 that Roberts is apparently liable for a forfeiture in the amount of ten thousand dollars ($10,000). II. BACKGROUND 2. Roberts is the operator of Pirate Cat Radio (“PCR”) which operates a radio broadcast station without a license issued by the FCC on 87.9 MHz in San Francisco, California. Roberts is also the executive of the Pirate Cat Café and Studio located at 2781 21st Street, San Francisco, California. In 2008, Roberts began operating PCR from a radio studio located at the Pirate Cat Café and Studio. According to the PCR website (www.piratecatradio.com), which prominently features Roberts, PCR describes itself as “unlicensed low powered community radio” located at the same address as the Pirate Cat Café and Studio.3 The Enforcement Bureau’s San Francisco Office has issued numerous warnings and Notices of Unlicensed Operation (NOUOs) to Roberts and PCR concerning unlicensed radio operations and detailing the potential penalties for operating an unlicensed radio station, and for further violations of the Communications Act and 1 47 U.S.C. § 301. 2 47 U.S.C. § 503(b). 3 The PCR website also mistakenly claims its unlicensed operation is sanctioned by Section 73.3542 of the Rules, 47 C.F.R. § 73.3542. We note that authority to operate pursuant to this Section must be granted by the FCC, and that the burden is on the applicant to show the required “extraordinary circumstances” to support such a grant. A-O Broadcasting Corporation, 23 FCC Rcd 603, 614 (2008). There is no record that Roberts and PCR have ever received such a grant of authority from the Commission. Additionally, the frequency used without authority by Roberts and PCR is 87.9 MHz, which is not allocated to the FM broadcast band. See Section 73.201 of the Rules, 47 C.F.R. § 73.201. Federal Communications Commission 2 FCC rules.4 3. On April 28, 2009, agents from the San Francisco Office, using radio direction-finding methods, determined that the transmission source of a radio signal on 87.9 MHz was an antenna on the roof of a residence at 841 Corbett Avenue, San Francisco, California. The agents took field strength measurements of the signals and determined the signals being broadcast exceeded the limits for operation under Part 15 of the Commission’s Rules (“Rules”)5 and therefore required a license. Searches of the Commission databases found no evidence of a Commission authorization for this operation on 87.9 MHz in San Francisco, California. 4. On April 29, 2009, agents from the San Francisco Office, using radio direction-finding methods, determined that the transmission source of the unlicensed radio signals on 87.9 MHz was once again the antenna on the roof of 841 Corbett Avenue, San Francisco, California. The agents took field strength measurements of the signals and again determined the signals being broadcast exceeded the limits for operation under Part 15 of the Rules,6 and therefore required a license. Previous searches of the Commission databases found no evidence of a Commission authorization for this operation on 87.9 MHz in San Francisco, California. Later on April 29, 2009, the agents observed Roberts operating and controlling the unlicensed radio station on 87.9 MHz from the Pirate Cat Café and Studio, at 2781 21st Street, San Francisco, California. The agents subsequently monitored PCR and located the signal again emanating from 841 Corbett Avenue, San Francisco, California. The agents identified Roberts as the voice on the unlicensed transmissions on 87.9 MHz. III. DISCUSSION 5. 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.7 The term “repeated” means the commission or omission of such act more than once or for more than one day.8 4 See, e.g., Notice of Unlicensed Operation to Daniel K. Roberts, (San Francisco Office, March 7, 2006); Notice of Unlicensed Operation to Jason Seifert, (San Francisco Office, April 20, 2006); Notice of Unlicensed Operation to Josh Goodwin, (San Francisco Office, June 27, 2006); Notice of Unlicensed Operation to Alexander Ness, (San Francisco Office, March 29, 2007); On-Scene Notice of Unlicensed Operation, (San Francisco Office, August 18, 2008). 5 Section 15.239 of the Rules provides that non-licensed broadcasting in the 88 to 108 MHz band is permitted only if the field strength of the transmission does not exceed 250 ?V/m at three meters. 47 C.F.R. § 15.239. Fundamental emissions from intentional radiators are not permitted in the band 76 to 88 MHz. 47 C.F.R. § 15.209(a). On April 28, 2009, the measurements indicated that the signal was more than 4,000 times greater than the maximum permissible level for a non-licensed Part 15 transmitter in the 88 to 108 MHz band and more than 10,000 times greater than the maximum permissible level in the 76 to 88 MHz band. 6 On April 29, 2009, the measurements indicated that the signal was more than 3,000 times greater than the maximum permissible level for a non-licensed Part 15 transmitter in the 88 to 108 MHz band and more than 8,000 times greater than the maximum permissible level in the 76 to 88 MHz band. 7 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). 8 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are (continued....) Federal Communications Commission 3 6. 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 Act and with a license granted under the provisions of the Act. Section 3(33) of the Act defines “communications by radio” as “the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things the receipt, forwarding, and delivery of communications) incidental to such transmission.”6 On April 28 and 29, 2009, FCC San Francisco agents determined that an unlicensed radio station was transmitting on 87.9 MHz from 841 Corbett Avenue in San Francisco, California. On April 29, 2009, the San Francisco agents determined that the station was controlled from the Pirate Cat Café and Studio, 2781 21st Street, San Francisco, California, with Roberts operating the station and providing services incidental to the provision of the transmission of PCR on 87.9 MHz.7 Despite numerous warnings, Roberts has continued to operate PCR without a license issued by the FCC. Therefore, Roberts’ violation was willful. The violation occurred on more than one day, therefore, it was repeated. Based on the evidence before us, we find that Roberts apparently willfully and repeatedly violated Section 301 of the Act by operating radio transmission apparatus without a license on 87.9 MHz in San Francisco, California. 7. 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 of a radio transmitter without an instrument of authorization is $10,000.9 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.10 Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors to the instant case, we conclude that Roberts is apparently liable for a $10,000 forfeiture. IV. ORDERING CLAUSES 8. 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, Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey” 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 Communications Act of 1934, as amended.11 9. 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, Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey,” SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. (...continued from previous page) 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 47 U.S.C. § 153(33). 7 See Joni K. Craig, 21 FCC Rcd 10793 (EB 2006). 9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. 10 47 U.S.C. § 503(b)(2)(E). 11 47 U.S.C. §§ 503(b), 301; 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80. Federal Communications Commission 4 10. 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 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. 12 Please contact the Financial Operations Group Help Desk at 1-877-480- 3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey” will also send electronic notification on the date said payment is made to WR-Response@fcc.gov. 11. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Western Region, San Francisco Office, 5653 Stoneridge Drive, Suite 105, Pleasanton, CA 94588-8543 and must include the NAL/Acct. No. referenced in the caption. An electronic copy shall be sent to WR-Response@fcc.gov. 12. 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. 13. 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 Daniel K. Roberts a/k/a “Monkey Man” a/k/a “Monkey.” FEDERAL COMMUNICATIONS COMMISSION Thomas N. Van Stavern District Director San Francisco Office Western Region Enforcement Bureau 12 See 47 C.F.R. § 1.1914.