Subject: [NEXTEL-1] FORFEITURE ORDER-California Speedway

From: Marcel <[email-masked]>
Date: Thu, 14 Nov 2002 16:00:21 -0500

Isn't this the same person who had some Political Yahoo use his influence in an
     attempt to smooth things over with the FCC? I can't remember if the Owner or the
     Yahoo got in trouble?

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                                        Before the
                            Federal Communications Commission
                                  Washington, D.C. 20554

                                     In the Matter of
                                   California Speedway
                                   File No. EB-01-LA-142

                                  NAL/Acct. No. 200232900002
                                   Fontana, California
                                        FRN# 0006-0339-97

                                     FORFEITURE ORDER

                Adopted:  November 12, 2002     Released:  November 14, 2002

By the Chief, Enforcement Bureau:

INTRODUCTION

1. In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of
eight thousand dollars ($8,000) to California Speedway for willful violation of Section
301 of the Communications Act of 1934, as amended  (the “Act”).  The noted violation
involves operation of an unlicensed radio transmitter on FM broadcast frequency 104.7 MHz.

 2. On May 30, 2002, the District Director of the Enforcement Bureau’s Los Angeles,
California Office (“Los Angeles Office”) issued a Notice of Apparent Liability for
Forfeiture (“NAL”) finding California Speedway apparently liable for a forfeiture in the
amount of $10,000 for willful violation of Section 301 of the Act.   On July 1, 2002,
California Speedway filed a response.

BACKGROUND

3. On November 2, 2001, the Los Angeles Office received a complaint alleging that
California Speedway, which is located in Fontana, California, was operating a radio
station on frequency 104.7 MHz.  An agent from the Los Angeles Office searched the Federal
Communications Commission’s (“FCC” or “Commission”) license database which revealed no
license issued for the operation of an FM broadcast station on 104.7 MHz in or around
Fontana, California and no broadcast authorization issued to California Speedway.   On
November 8, 2001, an agent from the Los Angeles Office spoke on the telephone with the
Director of Operations for California Speedway.  The Director of Operations stated that
California Speedway operates a one-watt transmitter on the frequency 104.7 MHz and that
the transmitter was used only during events.

4. On November 14, 2001, the Los Angeles Office sent a Notice of Unlicensed Radio
Operation to California Speedway.   The Notice warned California Speedway that it may be
operating a radio station on frequency 104.7 MHz without a license in violation of 47
U.S.C. § 301 and that such operation could result in penalties.  The Notice directed the
operator of the station to discontinue operation immediately if it was operating without
an authorization.  California Speedway did not submit a written response to the Notice.

5. On March 22, 2002, an agent from the Los Angeles Office once again spoke on the
telephone with the Director of Operations for California Speedway.  During the
conversation, the agent orally advised that the operation of the unlicensed radio station
on 104.7 MHz could result in a monetary forfeiture.

6. On March 24, 2002, agents from the Los Angeles Office conducted an investigation at
California Speedway.  Using a FCC Mobile Digital Direction Finding vehicle and direction
finding techniques, the agents detected radio transmissions on frequency 104.7 MHz from a
location in the middle of the grounds of California Speedway.  Field strength measurements
revealed that the radio emissions exceeded the levels allowed for non-licensed operation
under Sections 15.209(a) and 15.239(b) of the Commission’s Rules (“Rules”).   The measured
field strength was 63,500 µV/m or 254 times that permitted by the rules.

7. California Speedway argues that the facts cited in the NAL do not support the
conclusion that it engaged in unlicensed operation.   It argues that the NAL cites only
that California Speedway’s equipment exceeded permissible emission limits.   Although,
according to California Speedway, this suggests a possible violation for unauthorized
emissions or exceeding power limits, this is insufficient evidence to establish unlicensed
operation.   California Speedway also claims that it was not provided with documentation
of the March 24 measurement and thus it cannot assess whether or not the violation
occurred or whether imposition of the base forfeiture amount was justified.   California
Speedway also claims that it was never told that it was prohibited from operating the
equipment.

8. California Speedway next argues that, assuming arguendo, a violation of 47 U.S.C.
§ 301 occurred, the NAL did not take into account facts warranting reduction or
cancellation of the forfeiture.   California Speedway argues that the violation was minor
because there is no evidence of substantial harm to any third party or that the violation
was egregious, continuing or repeated.   Further, it argues that there is no evidence that
California Speedway derived substantial gain from the operation or that the violation was
intentional.

9. Next, California Speedway claims that “[a]t all times, the Speedway operated the
equipment in a good faith attempt to comply with Part 15 rules.”   It argues that the
equipment was recommended to it as providing enhanced public address features which it was
interested in providing and that when it acquired the equipment “it believed that
equipment to be compliant with FCC equipment rules for use on an unlicensed basis on FM
frequencies including those with public address systems.”   California Speedway states
that when it originally purchased the equipment the manufacturer advised it to turn down
the unit’s output control if it received any complaints of interference during use of the
equipment.   California Speedway also states that it selected 104.7 MHz because the
closest FM radio station operating on that frequency was 70 miles away and thus it
believed that that station was beyond the range of possible interference.   Finally,
California Speedway argues that it has a history of overall compliance with the
Commission’s rules.

DISCUSSION

10. The forfeiture amount in this case was assessed in accordance with Section 503(b) of
the Act,  Section 1.80 of the Rules,  and the  Commission’s Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines.   In
examining California Speedway’s response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent and gravity of the
violation and, with respect to the violation, the degree of culpability, any history of
prior offenses, ability to pay, and other such matters as justice may require.

11. We reject California Speedway’s argument that the evidence does not support a finding
of unlicensed operation.  Section 301 of the Act prohibits “operation of any apparatus for
the transmission of energy or communications or signals by radio except under and in
accordance with this Act and with a license in that behalf granted under provisions of the
Act.”   Section 15.1(a) of the Rules,   provides that Part 15 of the Rules   sets out the
regulations under which an intentional radiator (e.g., a low power FM radio transmitter),
may be operated without an individual license.  Section 15.1(b) of the Rules provides that
“operation of an intentional … radiator that is not in accordance with the regulations in
this part must be licensed pursuant to the provisions of [S]ection 301 of the
Communications Act of 1934.”   Thus, by the clear wording of this rule, in order to be
exempt from Section 301’s license requirement, an intentional radiator such as a low power
FM radio transmitter must be operated in accordance with Part 15.  Otherwise, the
operation requires a license.

12. Pursuant to Section 15.239(b) of the Rules, non-licensed low power operation in the FM
Band (88-108 MHz) is permitted only if the field strength of the transmissions does “not
exceed 250 microvolts/meter (“µV/m”) at three meters.”   The investigation conducted by
the Los Angeles Office found the station’s field strength to measure 63,500 µV/m when
extrapolated to three meters.  Thus, the measured field strength of California Speedway’s
operation exceeded the permissible Part 15 level for a non-licensed low power FM operation
(250 µV/m at three meters) by 254 times.  Therefore, California Speedway’s operation of
the transmitter was not “in accordance with the regulation” in Part 15.  As a result,
under Section 15.1(b) of the Rules, California Speedway’s radio operation required a
license.  Since California Speedway had no license to operate at 104.7 MHz with this field
strength, its operation violated Section 301 of the Act.  California Speedway’s claim that
it intended to operate the station under Part 15 is irrelevant since the standard
articulated in Section 15.1 turns on whether the transmitter is, in fact, operated in
accordance with Part 15; not whether California Speedway intended to operate the radio
station under Part 15.  Accordingly, we conclude that California Speedway willfully
violated Section 301 of the Act when it engaged in unlicensed operation of a radio station
on frequency 104.7 MHz.

13. We conclude that a forfeiture in the amount of $8,000 is warranted in light of
California Speedway’s history of overall compliance with the Commission’s rules.   We
disagree with California Speedway’s argument that other factors warrant a cancellation or
further reduction of the forfeiture.  In particular, we reject California Speedway’s
argument that it acted in good faith.  To the contrary, there is no evidence that
California Speedway took steps to ensure that its radio operation was within the
parameters imposed by Part 15.  For example, California Speedway has not demonstrated that
it tested the equipment or monitored the field strength to ensure that the operation did
not exceed the Part 15 emission limits.   We are particularly concerned that California
Speedway failed to take these steps even after receiving notice in November 2001 from the
Los Angeles Office regarding the unlicensed operation.  Further, the existence of this
Notice coupled with the fact that California Speedway’s Director of Operations was orally
advised of the consequence of unlicensed operation prior to the March 24, 2002
investigation renders California Speedway’s suggestion that it did not have notice
regarding the operation of its equipment without merit.

14. Additionally, California Speedway’s claim that the forfeiture should be reduced
because the violation was minor is not supported by the facts.  We do not believe that a
non-licensed low power FM operation that exceeds the permissible level for such operation
by more than 254 times is minor.  Further, the absence of evidence of substantial harm to
any third party, or that the violation was egregious, continuing or repeated, or that
California Speedway derived no substantial gain from the operation are not relevant
factors for reducing the forfeiture.  These factors are used for upward adjustments to the
base forfeiture amounts specified in Section 1.80 of the Rules.   The forfeiture at hand
was issued to California Speedway for the base amount of $10,000 as specified by Section
1.80 for operation without an instrument of authorization (i.e., unlicensed operation).
None of the upward adjustment factors were used in the determining the forfeiture issued
to California Speedway.  Thus, California Speedway’s claim that the absence of these
factors should result in a reduction of the forfeiture is misplaced.

15. Based on the facts of this case, we conclude that neither cancellation nor further
reduction of the forfeiture is warranted.  Accordingly, we find California Speedway is
liable in the amount of $8,000 for unlicensed operation of a radio station in violation of
Section 301 of the Act.

ORDERING CLAUSES

16. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and Sections
0.111, 0.311 and 1.80(f)(4) of the Rules,  California Speedway IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000) for unlicensed operation of a
radio station in willful violation of Section 301 of the Act.

17. Payment of the forfeiture shall be made in the manner provided in Section 1.80 of the
Rules within 30 days of the release of this Order.  If the forfeiture is not paid within
the period specified, the case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.   Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications Commission, to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.  The payment
should reference NAL/Acct. No.  200232900002 and FRN 0006-0339-97.  Requests for full
payment under an installment plan should be sent to:  Chief, Revenue and Receivables
Group, 445 12th Street, S.W., Washington, D.C. 20554.

18. IT IS FURTHER ORDERED that, a copy of this Order be sent by Certified Mail – Return
Receipt Requested – to California Speedway, 9300 Cherry Avenue, Fontana, CA 92335 and to
its counsel, E. Ashton Johnston, Piper Budnick, LLP, 1200 19th Street, NW, Washington, DC
20036.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon
Chief, Enforcement Bureau