******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Robert J. Powers ) NAL Acct. No. 315ST0007 Puyallup, Washington ) ORDER Adopted: August 19, 1997 Released: August 22, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. In this Order, we address the Notice of Forfeiture (NOF) for $1,600 issued to Mr. Robert J. Powers on February 26, 1993, by the Seattle, Washington Field Office of the Compliance and Information Bureau, Federal Communications Commission. The forfeiture was issued under authority of Section 503(b) of the Communications Act of 1934, as amended (Act), 47 U.S.C.  503(b) for violating Section 301 of the Act, 47 U.S.C.  301. The amount of the forfeiture was determined pursuant to the Commission's guidelines for assessing forfeitures that were in effect at the time. See Policy Statement Standards for Assessing Forfeitures, 8 FCC Rcd 6215 (1993). On July 12, 1994, the United States Court of Appeals for the D.C. Circuit vacated the forfeiture guidelines. United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). On our own motion, pursuant to Section 504 of the Act, 47 U.S.C.  504, and Section 1.80(i) of the Commission's Rules, 47 C.F.R.  1.80(i), we have evaluated all of the circumstances in this case and conclude that a forfeiture in the amount of $1,600 is warranted. II. BACKGROUND 2. On January 26, 1993, FCC Agents from the Seattle Field Office discovered Mr. Powers operating a radio station on 27.455 MHz at approximately 10:23 p.m. without authorization from the Commission. The FCC Agents, using close-in direction finding techniques, traced Mr. Powers' unauthorized transmissions to his residence at 2406-1/2 120th Street East, Puyallup, Washington 98378. During the inspection, Mr. Powers admitted to operating on the unlicensed frequency. 3. As a result of Mr. Powers unlicensed operation, the Seattle Field Office released a Notice of Apparent Liability (NAL) on February 1, 1993, in the amount of $2,000 citing Mr. Powers for violating Section 301 of the Act. Mr. Powers, through his attorney, responded to the NAL on February 23, and asked that the forfeiture not be imposed because of Mr. Powers' past compliance with the FCC rules and his inability to pay. The Seattle Field Office was not persuaded by Mr. Powers' inability to pay claim, and found that his supporting documentation did not show an inability to pay. The Seattle Field Office, however, was persuaded by the past compliance claim and reduced the forfeiture on that basis. Accordingly, the Seattle Field Office released a Notice of Forfeiture (NOF) in the amount of $1,600 on February 26, 1993. III. DISCUSSION 6. Mr. Powers, to date, has not responded to the NOF. As noted in paragraph 1, the NOF followed the Commission's forfeiture guidelines vacated by the Court in United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). Therefore, to assess the forfeiture amount in this case, we have considered the statutory provisions set forth in Section 503 of the Act, 47 U.S.C.  503(b)(2)(D). In particular, Section 503(b)(2)(D) of the Act requires that the Commission "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." 47 U.S.C.  503(b)(2)(D). We agree with the field office that the documentation submitted by Mr. Powers does not support his inability to pay claim. Given that Mr. Powers admitted to the unlicensed operation, and has offered no additional mitigating circumstances, we conclude that the issuance of forfeiture in the amount of $1,600 is warranted. IV. ORDERING CLAUSES 7. IT IS ORDERED THAT a forfeiture against Mr. Robert J. Powers for one thousand six hundred dollars ($1,600) is hereby assessed pursuant to Sections 503(b) and 504 of the Act, 47 U.S.C.  503(b), 504, and Section 1.80(i) of the Rules, 47 C.F.R.  1.80(i). 8. IT IS FURTHER ORDERED that Robert J. Powers must pay the forfeiture amount of one thousand six hundred dollars ($1,600) within thirty (30) days of the release date of this Order, or file an Application for Review of the Bureau's Order pursuant to 47 C.F.R.  1.115. Payment may be made by check or money order payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. Please place NAL/Acct. No. 315ST0007 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Forfeiture penalties not paid within 30 days may be referred to the U. S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 9. IT IS FURTHER ORDERED that a copy of this Order shall be sent to Mr. Robert J. Powers and his counsel. FEDERAL COMMUNICATIONS COMMISSION Richard D. Lee Acting Chief Compliance and Information Bureau