"Mr. Kobres' station was received by me approximately six miles from the transmitter," does not constitute legally admissable evidence of illegal broadcasting. The Error was ignored by Federal Judge Steven D. Merryday
UNITED STATES DISTRICT COURT
|UNITED STATES OF AMERICA,
ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, RF POWER AMPLIFIERS, RF TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH THE TRANSMISSIONS BETWEEN 87.9 MHZ AND 107.9 MHZ, LOCATED AT 18510 LAKE SHORE DR., LUTZ, FL 33549
CASE NO. 96-397-CIV-T-23B
AFFIDAVIT OF GERARDO DAUBAR
I, Gerardo Daubar, being duly sworn, do hereby state the following:
(1) I am an Electronics Engineer in the Tampa, Florida Office of the Compliance and Information Bureau, Federal Communications Commission (hereafter FCC). I have held that position since 1986. I have been continuously employed as an Electronics Engineer of the FCC since January 1979. I hold a Bachelor of Science degree in Electrical Engineering and a Professional Engineer license.
(2) I am experienced in all phases of the FCC's investigations involving radio frequency transmitting devices. I have had formal training in the identification and testing of such equipment and I have participated in high priority investigations involving the illegal use of such equipment.
(3) The FCC is an independent federal regulatory agency, created by Congress to regulate interstate and foreign radio communications pursuant to the 1934 Communications Act, Title 47 U.S.C., Sec. 151 et seq. One of its responsibilities is to ensure that no person shall operate any apparatus for the transmission of energy or communications or signals by radio from one place in the United States to another place in the United States except under and in accordance with the Communications Act of 1934, as amended, and with a license for that purpose granted under the provisions of the Act, 47 U.S.C. 301.
The operation of radio transmitters in a manner that allows radio frequency (RF) energy to be transmitted from one place in any state, territory or possession of the United States to another place in the same state, territory or possession, without a license issued by the FCC is a violation of 47 U.S.C. 301.
Broadcast stations in the FM Radio Service, i.e., broadcast stations that transmit on a frequency between 88 and 108 MHz must be licensed by the Commission. 47 U.S.C., Sec. 301. The only exception is for certain low power stations in this band whose emissions do not exceed 150 micro-volts/meter at three meters as measured by instruments commonly referred to a field strength meter. 47 C.F.R., Sec. 15.239. The amount of power from Mr. Kobres' station far exceeds that provision in 47 C.F.R., Sec. 25.239 which permits certain very low power emissions in this band without a license. Transmitters operating in accordance with that regulation have a range of no more than 1000 feet. Mr. Kobres' station was received by me approximately six miles from the transmitter.
(4) On October 30, 1995 an employee of a local broadcast station called me to complain about an unlicensed radio station transmitting on 96.7 MHz in the Lutz, Florida area. No broadcast station has been authorized by the FCC to operate on 96.7 MHz in the Lutz, Florida area.
(5) To locate the signal source, I drove to Lutz, Florida on October 31, 1995 with a FCC mobile automated direction finding vehicle. This car is equipped with radio receivers and other electronic equipment that enables the operator to track and locate the source of any radio transmission. When a radio transmitter starts sending a signal, the equipment in the car provides a visual display of the relative direction the signal is coming from and the strength of the signal received. As the car approaches the source of the signal, the display will continue to show the relative direction of the signal and an increase in the strength of the signal received. Typically the cars move around the signal until the driver can pinpoint the location of the transmission. I have used such a vehicle successfully well over 400 times to locate the source of radio transmissions during the past 17 years and am fully knowledgeable about its operation.
(6) On October 31, 1995 FCC Agent Steve Ferguson and I confirmed that unauthorized transmissions were being made in the neighborhood of Yocam Street and Lake Shore Drive in Lutz, Florida.
(7) On November 3, 1995 FCC Agents Steve Ferguson, Brian Marenco and I were able to return to the Lutz, Florida area to investigate the transmissions. At approximately 3:00 p.m. the readings on our equipment indicated the source of the broadcasts on 96.7 MHz to be from the property located at 18510 Lake Shore Drive, Lutz, Florida 33549. There are several types of antennas at that location. Shortly after we located the exact location of the transmissions, we approached the property and met the owner who was identified as Mr. Arthur (Art) L. Kobres. He readily admitted the unauthorized operation but refused to stop the transmissions or to allow us to inspect his radio station. Although Mr. Kobres refused to allow me to inspect his radio station, based on my training and experience, the equipment necessary to transmit would be probably be no smaller than 2' x 3' x 1/2' and no larger than 6' x 3' x 5' and this equipment can be disassembled and moved.
Failure to allow inspection of a radio station by an agent of the FCC is a violation of 47 U.S.C., Sec. 303(n) which states the FCC from time to time, as public convenience, interest, or necessity requires, shall have authority to inspect all radio installations with stations required to be licensed by any Act.
(8) Three additional instances of unauthorized operation were confirmed through close-in direction finding techniques on November 22 and 30, 1995 and February 16, 1996.
(9) On November 13, 1995, we mailed Mr. Kobres a letter warning him about the penalties involved for unlicensed operation and requested him to submit a reply to this office in writing. (See Attachment 1.)
(10) On December 4, 1995, Mr. Kobres submitted to this office a letter and other material, including two audio cassettes in response to our inquiries (see Attachment 2). Mr. Kobres admits his continued operation of the unlicensed radio station. He bases his unlicensed operation on philosophical and political convictions.
(11) Unlicensed broadcasting threatens the integrity of the regulatory structure established in the Communications Act to prevent chaos on the radio airways. The regulatory effectiveness of the Commission to carry out its statutory obligations to license radio stations and prevent interference would be impaired if the agency could not take meaningful action to stop unlicensed broadcasting.
(12) In sum, based on my investigation, Mr. Arthur L. Kobres is engaged in the unlicensed operation of a broadcast station. He is violating Section 301 of the Communications Act, as amended, Title 47, U.S.C., Sec. 301. I believe that seizure of the transmitting equipment and other devices associated with the radio broadcast station, in accordance with the Communications Act, Title 47, U.S.C. Sec. 510 is necessary to prevent continued violations.
EXECUTED on the 26th day of February, 1996, in Tampa, Florida.
|FURTHER AFFIANT SAYETH