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FCC Upholds California Man’s $24,000 Fine for Unlicensed Radio Operations, Refusing Inspection of Radio Equipment

02/21/2013

In June 2011, the FCC issued a Forfeiture Order in the amount of $24,000 to Kevin W. Bondy of Encino, California for engaging in unlicensed radio operation, intentional interference to licensed radio operations and for refusing to allow an inspection of his radio equipment by the FCC. On February 15, 2013, the FCC issued a Memorandum Opinion & Order (MO&O), upholding the $24,000 fine.

Bondy -- licensee of General Mobile Radio Service (GMRS) Station WQGX752 -- was accused of repeatedly and intentionally jamming four land-mobile frequencies assigned to The Oaks Shopping Center in Thousand Oaks, California in 2009. In assessing the $24,000 fine, the FCC noted that it was responsible for making and enforcing regulations to prevent interference and to maintain control over the use of the radio spectrum in a manner that promotes the public interest and convenience. “Bondy’s acts cut at the heart of the Commission’s responsibilities to protect the nation’s airwaves and regulate use of the spectrum,” the 2011 Forfeiture Order said. “Bondy operated a radio without a license on the specific frequencies assigned and licensed by the Commission to The Oaks, for the explicit and expressed purpose of prohibiting The Oaks’s use of its licensed frequencies. This type of conduct inhibits the Commission’s ability to effectively regulate and maintain control over the use of the spectrum and will not be tolerated.”

In July 2011, Bondy filed a Petition for Reconsideration, asking the FCC to reverse the Forfeiture Order, “reiterat[ing] his arguments that he did not commit the violations and that he did not refuse to allow the inspection, and he adds that there is no proof that he caused the interference or refused to allow the inspection.” The FCC noted in the MO&O that Bondy had until July 30, 2011 -- 30 days after the issuance of the Forfeiture Order -- to either pay the fine or file a Petition for Reconsideration, but his Petition was never properly received: “While Mr Bondy e-mailed a copy of his Petition to the [FCC] on July 6, 2011, there is no evidence that a copy was ever received by the Secretary of the Commission. As Section 1.106(i) of the FCC’s Rules explicitly states, ‘[p]etitions submitted only by electronic mail and petitions submitted directly to staff without submission to the Secretary shall not be considered to have been properly filed.’ Accordingly, because Mr Bondy failed to timely file his Petition, we dismiss the Petition on procedural grounds.”

The FCC also noted that even if Bondy’s Petition for Reconsideration was not procedurally defective, it still would have failed on the merits of the case: “Reconsideration is appropriate only where the petitioner either demonstrates a material error or omission in the underlying order or raises additional facts not known or not existing until after the petitioner’s last opportunity to present such matters. A Petition for Reconsideration that reiterates arguments that were previously considered and rejected will be denied.”

The FCC went on to say that as explained in the Forfeiture Order, an FCC agent with the Enforcement Bureau’s office in Los Angeles used direction finding techniques and located Bondy as he transmitted on frequencies 464.7125 MHz and 462.8375 MHz on March 6, 2009. “The agent successfully located the initiating transmissions to a vehicle located at the parking structure near The Oaks in which Mr Bondy was operating,” the MO&O said. “Mr Bondy was then identified by a Ventura County police officer, a fact that Mr Bondy does not dispute. While the Los Angeles agent was attempting to locate Mr Bondy, The Oaks personnel recorded their transmissions with Mr Bondy in which Mr Bondy ordered them to vacate frequencies 461.375 MHz and 466.375 MHz while he was transmitting on frequencies 464.7125 MHz and 462.8375 MHz. Mr Bondy stated in his transmissions to The Oaks personnel that he had been jamming the frequencies 461.375 MHz and 466.375 MHz, and that The Oaks had to stop using those frequencies. Thus, the Forfeiture Order is supported by evidence that Mr Bondy transmitted on frequencies that he had no authorization for and announced, and engaged in, intentional interference to The Oaks’s operations on frequencies 461.375 MHz and 466.375 MHz. Consequently, we find there is sufficient evidence that Mr Bondy willfully and repeatedly violated Sections 301 and 333 of the Communications Act and Section 95.183(a)(5) of the Commission’s Rules.”

The FCC pointed out that there was “sufficient evidence that Mr Bondy willfully violated Section 303(n) of the Communications Act, and Section 95.115 of the Commission’s Rules by refusing to allow an inspection of his radio equipment by FCC personnel. After the Los Angeles agent requested an inspection of Mr Bondy’s radio equipment on March 6, 2009, Mr Bondy initially refused an inspection, then agreed, then refused a full inspection. Mr Bondy believed that the agent was specifically focused on one of Mr Bondy’s handheld radios to determine which frequencies were programmed into the device, which was not readily apparent, given that Mr Bondy had programmed channel names, rather than frequencies, into the handheld. The agent reported that there were other radios in the car that he was unable to inspect, including a console mount radio, a handheld radio and a mobile radio unit in the back seat. The agent’s attempt to determine the actual frequency programmed into the handheld device was thwarted by Mr Bondy, and Mr Bondy indicated to the agent that he could not conduct a full and complete inspection of all of the radio equipment in the vehicle. Because of Mr Bondy’s refusal, the agent did not inspect those radios.”

The FCC found that Bondy’s Petition for Reconsideration “provides no basis for further reduction or cancellation of the monetary forfeiture assessed against Mr Bondy, even if his Petition had been timely filed, and affirm the Forfeiture Order.” Bondy has until March 17, 2013 to pay the $24,000 forfeiture amount. If the forfeiture is not paid by that date, the case may be referred to the US Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Communications Act.



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