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FCC Finds New Jersey Ham Violated Communications Act, Reduces Forfeiture from $20,000 to $16,000

01/04/2013

After unsuccessfully appealing to the FCC to cancel his $20,000 forfeiture, Joaquim Barbosa, N2KBJ, of Elizabeth, New Jersey was issued a Forfeiture Order stating that he must pay $16,000 for “willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended by operating a radio transmitting equipment on the frequency 296.550 MHz without Commission authorization.”

 

The FCC noted in the Forfeiture Order that based on the examination process involved in pursuing an amateur license, “amateur licensees are expected to have an understanding of radio operations and pertinent FCC regulations, including Part 97 of the FCC’s rules governing the Amateur Radio Service. Licensed amateur operators know that they are authorized to operate only on the frequencies listed in Section 97.301 of the rules, as designated by their operator class and license. Pursuant to the Table of Allocations, the 267-322 MHz band -- the band that Barbosa was operating in -- is allocated solely for federal government use, which we continue to believe Barbosa knew (or should have known) was not authorized for non-government use.”

Barbosa’s Amateur Radio license expired August 31, 2008, but his timely filed renewal application was listed as “Offlined for Enforcement Bureau Action” in the ULS. As such, Barbosa was legally allowed to operate while his case was undergoing the enforcement proceedings.

Background

In February 2008, the FCC, after receiving complaints from an authorized US government user regarding “harmful radio interference from an unauthorized station operating on the frequency 296.550 MHz -- a frequency limited to US military operations -- in the Elizabeth, New Jersey area.” Agents from the FCC’s New York Field Office responded to the complaint and used mobile direction finding techniques on February 6, 7, and 11 of that year. They determined that the source of the transmissions was coming from a residential home owned by Barbosa. On February 11, the agents conducted an inspection of the home and “directly observed a transceiver whose display showed that it was set to transmit frequency on 296.550 MHz. The agents also observed that the transmitter was connected to an antenna mounted on the back of the house.”

When the agents interviewed Barbosa, he admitted to operating the station and the transmitting equipment for at least four months, and confirmed that he owned the equipment. “Barbosa, who is licensed by the FCC as an Amateur Extra Class licensee (the highest level class), acknowledged knowing that the frequency 296.550 MHz was not a US frequency authorized for use by amateur licensees and confirmed that he did not have a license to operate on the frequency, the Forfeiture Order stated. “The agents advised Barbosa of the violation and issued him a Notice of Unlicensed Operation (NOUO).”

Following the inspection, on February 26, 2008, the Bureau issued a Notice of Apparent Liability (NAL), which found Barbosa in violation of Section 301 of the Act for “willfully and repeatedly operating a radio transmission apparatus on the frequency 296.550 MHz without Commission authorization.” In the NAL, the FCC proposed a $20,000 monetary forfeiture for the violation, “which included a $10,000 upward adjustment mainly because of the egregiousness of the violation.” On March 25, 2008, Barbosa filed a response to the NAL, requesting cancellation or a reduction of the forfeiture, and acknowledged that he did, in fact, operate a radio transceiver on the frequency 296.550 MHz without a license.

According to the Forfeiture Order, Barbosa contended, however, that cancellation or a substantial reduction of the proposed $20,000 forfeiture was warranted for several reasons: “(1) He reasonably believed that he had authority to operate on the frequency 296.550 MHz; (2) his constitutional rights were violated; (3) the unlicensed operation did not cause harm or interference; (4) the forfeiture amount is not supported by case precedent, and (5) that there are other factors -- such as his cooperation with the investigation, inability to pay and prior history of overall compliance with the rules -- that, when considered, justify cancellation or a reduction of the forfeiture.”

In examining Barbosa’s response, Section 503(b)(2)(E) of the Communications Act requires that the FCC take into account “the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay and other such matters as justice may require.” The FCC noted that it had “fully considered Barbosa’s response to the NAL in light of these statutory factors and find that cancellation of the forfeiture is not warranted; however, we find that some reduction of the forfeiture is justified based on his overall history of compliance with the rules prior to the investigation.”

Unlicensed Operation

Barbosa told the FCC that he “truthfully acknowledged to the FCC agent who conducted the enforcement visit on February 11, 2008 that he did operate a transceiver on 296.550 MHz.” Even so, he contended that cancellation or forfeiture reduction is warranted “because he reasonably believed that he otherwise had authority to operate the radio transmitting equipment using the frequency 296.550 MHz,” saying that his authority is “not based on his status as an amateur licensee (which he readily acknowledges does not authorize him to operate on the US government frequency), but based on the authority vested in him by a Brazilian man, who is authorized to operate the radio equipment using the frequency 296.550 MHz in Brazil.”

Mr. Barbosa told the FCC that “the frequency was one I knew to be an authorized Brazilian frequency for satellite communications and that I was operating on that frequency in compliance with a Brazilian permit as authorized by the Brazilian permit holder.” Barbosa also said that the Brazilian man who gave him the radio as a “gift” was a licensee under Brazilian authority, and that this individual showed him the Brazilian authorization and granted him permission to operate under his license to use the frequency. He argues that, as such, he “honestly believed” that the “master authorization” he was shown authorized him to operate the radio using the frequency at issue and, therefore, he should not be penalized for relying on that information.

“We find Barbosa’s arguments unavailing,” the FCC said. “Even assuming for the sake of argument that Barbosa is authorized to operate the radio equipment under Brazilian authority, he is not authorized to operate any such equipment in the United States without Commission authorization and, therefore, is still in violation of Section 301 of the Communications Act. We emphasize that Section 301 makes clear that operation of any radio station within the United States requires FCC authorization, which Barbosa did not have.”

The FCC also found Barbosa’s suggestion that the violation should be excused because he reasonably believed that he was authorized to operate the radio transmitter using the frequency 296.550 based on the Brazilian license held by the individual who gave him the radio “unpersuasive,” saying that “it is well established that the FCC does not consider ignorance of the law or even reliance on erroneous or misleading advice or information from third parties about licensing requirements as mitigating circumstances that can justify cancellation or reduction of a forfeiture, and we see no reason to depart from that long-established policy in this case.”

The FCC noted in the Forfeiture Order that Barbosa had not presented (including in his NAL response) any Brazilian license that specifically authorized him to operate the radio equipment on the frequency 296.550 MHz, nor a copy of the Brazilian license held by the individual who supposedly granted him permission to operate under his Brazilian license.

Violation of Constitutional Rights

The FCC stated that its inspection of Barbosa’s radio equipment was warranted, “given that Barbosa’s unauthorized use of the frequency 296.550 MHz was believed (and later confirmed) to be the source of harmful interference with a government communications system.” In his response to the NAL, Barbosa argued that his constitutional rights under the Fourth and Fifth Amendments were violated “because the FCC agents conducted a search of his home on February 11, 2008 without a warrant, entered his home without his consent and subjected him to an unlawful interrogation without the benefit of Miranda warnings.”

The FCC found “no merit” in Barbosa’s arguments: “First, the FCC inspection was not a criminal investigation, thereby making much of Barbosa’s constitutional claims (such as the need for Miranda warnings) inapplicable. Second, the inspection was authorized under Section 303(n) of the Communications Act, which states that the Commission has the ‘authority to inspect all radio installations associated with stations required to be licensed by any Act, or which the Commission by rule has authorized to operate without a license under section 307(e)(1).’ FCC agents are not required to obtain a warrant prior to conducting a radio station inspection. Third, as a licensed amateur radio operator for more than 13 years, Barbosa knew or should have known that any radio equipment at his station must be made available for inspection at any time when requested by the FCC, and that his cooperation and truthful responses during an inspection are expected. Finally, we find nothing in the record in this case to support Barbosa’s suggestion that the agents conducted themselves in an improper manner.”

In Barbosa’s response to the NAL, he confirmed that the FCC agents “took the following actions during the inspection (none of which we [the FCC] find inappropriate): The FCC agents knocked on the door of his home, identified themselves as federal agents, showed him government identification and handed him an FCC business card during the inspection; that he and his son led the agents inside and outside their home so that the agents could inspect the radio equipment and antenna; that the agents took photographs of the equipment and asked him questions concerning his operations; and that, at the end of the inspection, the agents handed him a Notice of Unlicensed Radio Operation that was signed by one of the agents. Based on all the foregoing, we find that the inspection conducted by the agents was lawful and appropriate, and that Barbosa’s constitutional rights were not violated.”

Harmful Interference

Barbosa also argued that the forfeiture should be reduced because there was, in his opinion, no evidence of actual interference or harm. “With respect to the record evidence,” the FCC said, “Barbosa is incorrect. The investigation in this case commenced specifically because an authorized US government user reported harmful radio interference to its communications system. It is self-evident that an unlicensed operation on unauthorized frequencies disrupts the operations of authorized licensees and often results in interference to authorized services. The fact that Barbosa’s unauthorized use of the frequency was obstructing and interfering with government communications was sufficient to characterize the interference as harmful.”

The FCC also noted that it believes that any interference to any US government user is “serious because of the potential harm to the public’s safety and security. Furthermore, even if there was no finding of interference or harm, Barbosa still would not be entitled to a forfeiture reduction. It is fairly established that the absence of interference or the showing of any harm to the public does not warrant a downward adjustment of the forfeiture.”

Case Precedent

Contrary to Barbosa’s assertion, the FCC stated that the NAL’s proposed $20,000 forfeiture amount -- which included a $10,000 upward adjustment -- is supported by case precedent: “In Raimundo P. Silva, the [FCC’s Enforcement] Bureau also issued a $20,000 forfeiture against an amateur licensee who admitted to operating radio equipment in the frequency band reserved for federal government use without a license for several months, but asserted (like Barbosa does here) that he was unaware that his unauthorized radio transmissions interfered with the federal government users’ authorized operations. The FCC found Silva’s apparent willful and repeated unlicensed and unauthorized radio operation in the restricted federal government band ‘egregious,’ justifying a significant upward adjustment in the amount of $10,000. Because the violation here is equally egregious, we find the $10,000 upward adjustment in this case to be consistent with prior cases and justified.”

Cooperation, Inability to Pay and History of Overall Compliance

Barbosa also suggested that the forfeiture amount merits some reduction because he was cooperative with the FCC agents during the inspection and because he has been truthful in his responses to the FCC. “While we appreciate Barbosa’s conduct in this investigation,” the FCC said, “Barbosa’s cooperative conduct is not a basis to justify a forfeiture reduction. The Commission expects all licensees to cooperate with its investigations and to provide truthful responses to any questions.”

Although Barbosa claims to be a “micro business owner,” he also contended that the forfeiture amount would present “a significant hardship” and, therefore, should be canceled or reduced. But he failed to provide any financial documents to support his request. With respect to a claim of financial hardship, the FCC will not consider canceling or reducing a forfeiture in response to an inability to pay claim, unless the individual or entity making the request submits either federal tax returns for the most recent three-year period, financial statements prepared according to generally accepted accounting principles or some other reliable and objective documentation that accurately reflects the individual’s or entity’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. “Because Mr. Barbosa did not provide any financial or other documentation to support or corroborate his asserted financial status,” the FCC stated, “we have no basis by which to evaluate Barbosa’s inability to pay claim and, therefore, must deny the request.”

Barbosa also said that the proposed forfeiture amount should be reduced because of his overall history of compliance with the laws, including the FCC’s rules. “We agree that a reduction of the forfeiture amount is warranted, based on our review of the record and finding that Barbosa (prior to the investigation) has a history of overall compliance with the Commission’s rules,” the FCC said. “Accordingly, after consideration of the entire record (including Barbosa’s response to the NAL), the Forfeiture Policy Statement and the factors set forth in Section 503(b)(2)(E) of the Communications Act, we find that, although cancellation of the monetary forfeiture is not warranted, a reduction of the forfeiture amount from $20,000 to $16,000 is appropriate.”

Barbosa has until December 31, 2012 to make full payment of the $16,000 or to contact the FCC to arrange a payment plan. If the forfeiture is not paid within the period specified, the case may be referred to the US Department of Justice for enforcement of the forfeiture.

 



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