$15,000 fine for Guntersville, Alabama FM Pirate
I. INTRODUCTION
1. FCC impose a penalty of $15,000 on Michael Dudley for operating an unlicensed radio station on 103.9 MHz in Guntersville, Alabama in violation of Section 301 of the Communications Act of 1934, as amended (Act). Mr. Dudley does not deny that he operated an illegal station, but argues that the station did not interfere with any other stations, that no one was harmed by the station’s operation, and that he does not have the resources to pay the forfeiture. After reviewing Mr. Dudley’s response to the NAL, we find no reason to cancel, withdraw, or reduce the proposed penalty, and assess the $15,000 forfeiture the Bureau previously proposed.
II. BACKGROUND
2. On May 3, 2016, in response to a complaint, an Agent from the Atlanta Field Office (Atlanta Office) of the Commission’s Enforcement Bureau (Bureau) conducted an investigation and determined that Mr. Dudley was operating an unlicensed radio station on 103.9 MHz at his residence in Guntersville, Alabama.2 When the Agent determined that Mr. Dudley was not at his residence, he left a hand-written Notice of Unauthorized Operation (NOUO). 3 Later, the Agent telephoned Mr. Dudley and provided a verbal warning that operation of a broadcast station without authorization is illegal. During the telephone call, Mr. Dudley promised to turn the transmitter off. The Bureau followed up by mailing him a NOUO on May 10, 2016.6 On May 11, Mr. Dudley voluntarily surrendered the transmitting equipment by mailing it to the Atlanta Office.
3. On July 14, 2016, in response to another complaint about an unauthorized station on 107.9 MHz near Mr. Dudley’s residence, an Agent again called Mr. Dudley.8 Mr. Dudley admitted that he was operating another unauthorized station and refused to turn it off. Agents visited Mr. Dudley’s residence on July 18, 2016, and confirmed that an unauthorized station was being operated at that residence. No one responded when the Agents knocked on the door, but Mr. Dudley contacted one of the Agents later that day and admitted again that he was operating a station without a license.
4. On October 20, 2016, the Bureau issued the NAL, proposing a $15,000 forfeiture against Mr. Dudley for his apparent willful and repeated violation of Section 301 Act by operating an FM radio broadcast transmitter without Commission authorization. That proposed forfeiture amount was comprised of a base forfeiture of $10,000, and an upward adjustment of $5,000 due to Mr. Dudley’s deliberate disregard for the Commission’s authority and requirements by operating the unauthorized station after being put on notice that his actions contravened the Act.13
5. On October 31, 2016, Mr. Dudley filed a response to the NAL. Although he does not deny operating the station, Mr. Dudley makes a number of arguments as to why the NAL should be cancelled and the forfeiture reduced or rescinded. Specifically, Mr. Dudley argues that he had ceased operating the station, that the station had not caused interference and so had not harmed anyone, and that he is unable to pay the forfeiture.
III. DISCUSSION
6. For the reasons discussed below, we reject Mr. Dudley’s arguments and assess a $15,000 forfeiture against Mr. Dudley for operating an unlicensed radio station in violation of Section 301 of the Act.
A. Post-Sanction Compliance Does Not Warrant a Reduction in the Proposed Penalty
7. Mr. Dudley does not deny the facts in the NAL. Rather, he argues in part that he should not be liable for a forfeiture because he ceased operating the station.
8. We are unpersuaded. Mr. Dudley’s one page NAL Response does not indicate whether he ceased the illegal operations after the issuance of the Bureau NAL or if instead he is merely referring to the interim period between when he ceased operations temporarily between the first set of NOUOs and his resumption of illegal broadcasting. In either event, we decline to reduce or cancel the forfeiture. The Commission has held that remedial action taken in response to Commission enforcement action is not a reason to reduce a forfeiture, and Mr. Dudley provides no basis for departing from that precedent here. Both potential scenarios merely evidence, at best, compliance after an enforcement action was taken. Moreover, in the latter scenario, his remedial action was only temporary. Mr. Dudley began broadcasting without a Commission license again just a few months after suspending his operations. That he changed transmitting frequencies only shows that he intended to evade Commission detection. Thus, we decline to reduce or cancel the proposed forfeiture due to actions Mr. Dudley may have taken after we took enforcement action.
B. Mr. Dudley’s Assertion that He Did Not Cause Harmful Interference Is Irrelevant to Establishing a Section 301 Violation. We are unpersuaded by Mr. Dudley’s argument that the proposed fine should be reduced because of his claim that his station did not cause interference and that no one was harmed by his unauthorized operation of the station. First, this claim is inconsistent with two complaints received by the Commission regarding Mr. Dudley’s unauthorized operation. Second, even if Mr. Dudley’s statements were true, the Commission has previously considered and rejected this argument. Specifically, the Commission found that Section 301 does not require a finding of interference before the Commission can prohibit unauthorized transmissions, because the Section 301 “licensing scheme is intended to facilitate broadcasting by protecting the service areas of those licensed to broadcast. Otherwise, the potential for chaos on the airwaves would severely undermine the ability of others to use the radio spectrum.” Enforcement of Section 301, therefore, is critical to protect the integrity of the licensing system and the operations of licensed users, regardless of whether the unauthorized transmission causes harmful interference. Consequently, Mr. Dudley’s assertion that he did not cause interference is neither relevant to our finding of a Section 301 violation nor factually supported by the record. We thus decline to reduce or cancel the proposed forfeiture on this basis.
C. Mr. Dudley Has Provided No Basis to Reduce the Forfeiture for Inability to Pay. We decline to reduce or cancel the forfeiture on the basis of Mr. Dudley’s unsupported statement that he has no assets or income, suggesting that the forfeiture amount should be reduced or cancelled based on his inability to pay. The NAL stated that the Commission will not consider a request for a reduction or cancellation of a proposed forfeiture unless the person who is subject to the NAL has requested such reduction or cancellation and submitted “a detailed factual statement supported by appropriate documentation and affidavits pursuant to Sections 1.16 and 1.80(f)(3) of the rules.” The NAL also explained that to support a claim of inability to pay, Mr. Dudley would need to submit (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices; or (3) some other reliable and objective documentation that accurately reflects the petitioner’s current financial status. Mr. Dudley did not submit any of the documentation or affidavits required by the Commission’s rules that would enable the Commission to evaluate an appropriate forfeiture based on his income. Accordingly, we find no basis to reduce or cancel the forfeiture based on an alleged inability to pay.
IV. CONCLUSION
11. Based on the record before us, and in light of the applicable statutory factors,22 we conclude that Mr. Dudley willfully and repeatedly violated Section 301 by operating an unauthorized radio station, and that the proposed forfeiture of $15,000 properly reflects the seriousness, duration, and scope of Mr. Dudley’s violations. We decline to cancel or reduce the $15,000 forfeiture proposed in the NAL.
V. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act,23 and Section 1.80 of the Rules, MICHAEL DUDLEY IS LIABLE FOR A MONETARY FORFEITURE in the amount of Fifteen Thousand dollars ($15,000) for willfully and repeatedly violating Section 301 of the Act.
13. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Rules within thirty (30) calendar days after the release of this Forfeiture Order. If the forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act.
FEDERAL COMMUNICATIONS COMMISSION
