Notably, the Bureau found that, prior to responding to the NAL, Lubbock Aero had not provided the specific date prior to April 1, 2009, when it last operated the radio station. Yet in its response to the NAL, Lubbock Aero argued a forfeiture was inappropriate because the operation during the seven-day period falling within the statute of limitations – April 1, 2009, being “the date of Lubbock Aero’s last broadcast activity on the frequency,” according to the company – was “’infrequent,’ typically lasting no more than 30 seconds, and without (to its knowledge) complaint of any interference.” The Bureau considered this description of brief, infrequent communications enough of an admission that there had been unauthorized operation within the last few days of the limitations period to warrant a forfeiture; the Bureau separately noted that circumstances made it “highly unlikely” that Lubbock Aero did not engage in operations on the frequency during the seven days after March 25, 2009. In short, the Bureau found that the preponderance of the evidence warranted a finding that there had been unauthorized operations after March 25, 2009, even though no specific transmission was identified. The Bureau emphasized that any unauthorized operation “is a serious violation” regardless of frequency or duration, explaining that, once it concluded it was more probable than not that there had been unauthorized operations, it could have adjusted the base forfeiture upward for unauthorized operations that occurred outside the limitations period.

The Bureau’s order is also noteworthy in two other respects. It reminds operators that, in enforcement proceedings, the Bureau does not consider absence of interference a mitigating factor or a basis for cancellation of a proposed forfeiture. (Indeed, interference is a violation separate from unauthorized operation.) In the case at hand, the Bureau did remark on, but did not describe as being of decisional importance, the potential for interference with authorized operations at 123.300 MHz, which is reserved for “aviation support stations used for pilot training, coordination of lighter-than-air aircraft operations, or coordination of soaring or free ballooning activities.” (The order is not entirely clear, but Lubbock Aero’s operations may have been consistent with these purposes.) Further, the Bureau suggests that fines for unauthorized operations by past license holders whose authorizations have expired will not be any less severe than those applicable to persons who operate without ever having a license, other factors meriting adjustment otherwise being the same, thereby providing a reminder to licensees to renew in a timely fashion.

The subjects of the Commission’s actions were The Supply Room, Inc. (“Supply Room”), a manufacturer and distributor or military insignia, uniforms, and technical gear, and Taylor Oilfield Manufacturing, Inc. (“Taylor Oilfield”), a provider of oil field machinery, equipment, and related services and products. Each company had obtained jammers from overseas suppliers through online retail sales, and operated them at their commercial sites. The operations were brought to the Commission’s attention in each case through anonymous complaints, which were then investigated by FCC Enforcement Bureau Field Offices. FCC agents first used direction findings techniques to confirm the location and frequencies of the jammers’ operation and then contacted and interviewed management personnel at each company’s location. Through the interviews, the companies volunteered that the jammers had been in operation from “a few months” in the case of Taylor Oilfield to “over two years” in the case of Supply Room. The two companies each voluntarily turned over their jammers to the FCC agents.

The Commission’s notices of apparent liability (“NAL”) are noteworthy for several reasons.

• First, the Commission made clear its intent to proceed against operators of unlawful jammers, and not just against manufacturers or commercial importers or retailers. This decision may, in part, have been because the operators here imported the devices themselves through Internet sales. The Commission concluded, moreover, that it was not required under the Communications Act to provide a warning to the operators before issuing its fines.
  
• Second, with one exception, as a starting point in calculating its proposed forfeitures, the Commission upwardly adjusted the penalties for each violation that the Commission decided to enforce – unauthorized operation, use of an unauthorized device, and interference – to $16,000, the maximum per day violation under the Communications Act. In the case of Taylor Oilfield, the Commission based its calculation of a penalty for the interference violation of $10,000 per device rather than $16,000. (The reasons for the disparate treatment are not explained, but the NALs indicate that Supply Room was operating its four jammers for at least two years rather than, in the case of Taylor Oilfield, just “a few months.”) As a result, for the twelve violations total attributed to the four devices in operation in each case, the Commission proposed forfeitures of $192,000 against Supply Room and $168,000 against Taylor Oilfield, before making 25% downward adjustments in each case for the companies’ voluntarily relinquishment of their devices to FCC agents. The downward adjustments resulted in final proposed forfeitures of $144,000 and $126,000, respectively – still fairly substantial proposed forfeitures.
  
• Third, the Commission noted that the maximum penalty for the operation of four unlawful jammers under a continuing violation theory (a maximum of $112,500 per jammer per violation) would yield a maximum penalty of $1.3 million. The FCC refrained from proposing such a substantial monetary forfeiture, in part, because these were the first NALs issued to business or individuals, implying that the proposed penalties in the future would potentially be substantially higher if the FCC deems it necessary to promote greater compliance.
  
• Fourth, the NALs conclude that businesses or individuals that use the Internet to make purchases from overseas firms for their own use may be considered as importers for purposes of enforcement of the FCC’s marketing regulations. However, the Commission chose in each of these two cases to not impose a penalty for the illegal importation of unauthorized radiofrequency devices. Thus, in effect, it chose to issue a citation for the alleged illegal importation rather than impose a penalty but warned that it would consider issuing forfeitures in the first instance for illegal importation by individuals and businesses of unauthorized equipment in the future.

Finally, these NALs may give some hint of the manner in which the Commission might proceed against industrial booster installations that are operated without consent of the commercial mobile licensees, as plainly required under the Commission’s recent order concerning consumer and industrial booster systems. Like jammers, of course, boosters operate on the frequencies of commercial mobile operators. Especially where interference is reported, the Commission may choose to proceed against operators finding multiple rule violations, upwardly adjust the base penalties to ten or sixteen thousand dollars, and assess penalties on a per booster basis. It will be interesting to monitor whether these two NALs will serve as any sort of model should there be enforcement against industrial booster operators.

In recent years, the FCC has conducted a number of investigations and initiated several enforcement matters against unauthorized marketing and use of cellphone jammers, GPS blockers, and similar equipment. To date, the agency has limited itself mostly to citations without monetary penalties, as well as enforcement advisories at irregular intervals. Eight recent orders, while they don't break with that pattern, and a new consumer alert and tip line indicate clearly that the Commission is ratcheting up its efforts in this area. It would not be surprising if the Commission soon finds reason to issue substantial forfeitures for illegal operation, especially if facts are present demonstrating that 9-1-1 or other emergency communications have been interfered with or if it finds a large corporation utilizing the unauthorized devices.

These eight matters, two released October 5, 2012, and another six released yesterday, each involved a citation and order issued against an individual. They are noteworthy for at least two reasons. As an initial matter, these orders reveal the FCC has been stepping up its "detection" efforts this year by trolling Craigslist to find violators of the marketing rules. In each recent instance, the Enforcement Bureau identified the violator by investigating Craigslist advertisements. In addition, in several of these cases, when the FCC agents contacted the marketers, posing as interested prospective buyers, the FCC was able to obtain admissions of operation of the unauthorized equipment, a separate violation. Indeed, in the case involving a James Christopher Garcia, FCC staff arranged a meeting at a predetermined location with the assistance of local law enforcement, at which Mr. Garcia assembled the antennas and powered on the device and a purchase was made before the FCC agent disclosed his identity and seized the device. The other cases where illegal operation was cited, involving Messrs. Naparty, Bering, Conde, and Grabowsky involved what the staff construed as admissions in e-mail communications only. Indicative of the Bureau's aggressive stance, Mr. Grabowsky's admission of use merely involved a statement (regarding the device) that "'[i]t does get hot' when used", to quote the FCC's citation.

Thus, not only did the FCC determine that these parties offered the jammer for sale in violation of federal law - "the mere posting of a jamming device for sale on Craigslist or any other online site or bulletin board targeting U.S. consumers contravenes federal law" - but enforcement staff posed undercover as prospective purchasers to gather further evidence. One cannot doubt in the circumstances that this may be a more effective investigative method than issuing a letter of inquiry. Despite these sting-like operations, the Commission refrained in these citations and orders from issuing fines for the illegal operation of the jammer, which the FCC had the discretion to impose for a first violation. The FCC did, however, order the two parties to turn over information regarding their sources for the jammers and any others they have had in their possession as well as their prior sales. In the citations, the FCC hinted that in the future it may not be so lenient with first time violators. The Commission underscored that it is "increasingly concerned" about jammer operation which is not excusable, even if on private property. It used the orders against these two individuals to "caution . . . potential violators that going forward, and as circumstances warrant, we intend to impose substantial monetary penalties, rather than (or in addition to) warnings, on individuals who operate a jammer." In short, the FCC has concluded that non-monetary penalties may no longer be effective in deterring unlawful operation by individuals. Be forewarned: when it comes to the FCC's investigation of jammers, it looks like there will be no more Mr. Nice Guy!

Simultaneously with the most recent six orders, the FCC released an enforcement advisory/consumer alert in English, Spanish, and Mandarin informing the public that it is unlawful to operate, import (including purchase by an individual from an overseas vendor), or sell even a single cellphone jammer, GPS blocker. The Enforcement Bureau announced that it "has a zero tolerance policy in this area and will take aggressive action against violators," including penalties potentially in excess of $100,000 per violation. In addition to the warnings of its consumer alert, the Commission issued a news release enlisting the assistance of the public in its enforcement efforts and announcing that it had set up a new tip hotline "to make it easier for the public to report the use or sale of illegal cell phone, GPS or other signal jammers." Only time will tell how effective these measures and warnings shots will be.