******************************************************** 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 ) ) Jeffrey G. Guss ) KF4MWT ) NAL/Acct. No. 815TP0001 240 Wendover Rd, S.W. ) Palm Bay, FL 32908 ) ) ) ) ) FORFEITURE ORDER Adopted: September 30, 1998 Released: October 7, 1998 By the Director, Legal Services Group, Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("Bureau") is a Notice of Apparent Liability ("NAL"), issued on February 11, 1998, to Jeff Guss ("Mr. Guss" or "respondent") and the response filed thereto by Mr. Guss on June 1, 1998. The NAL proposes imposition of a forfeiture in the amount of $2,500 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), against Mr. Guss for willful violations of Section 301 of the Act, 47 U.S.C.  301 and Sections 97.103(c) and 1.89 of the Commission's Rules, 47 C.F.R.  97.103(c) and 1.89. For the reasons noted below, we are affirming the forfeiture in the amount of $2,500. BACKGROUND 2. On February 18, 1997, the Bureau's Tampa District Office received a complaint from the Palm Bay, Florida Police Department that some unknown person, in the Palm Bay area, was causing intentional interference to a business radio service frequency. The interference was occurring on frequency 154.600 MHz in the land mobile service. The Palm Bay Police Department informed the Bureau's Tampa District Office that a male individual regularly addresses the users of the frequency. According to the Palm Bay Police Department, the male individual using the frequency allegedly used "foul" language, made threatening statements, and generally caused "havoc" to the frequency. 3. On March 3 and March 4, 1997, agents from the Bureau's Tampa District Office monitored the frequency 154.600 MHz in Palm Bay, Florida and recorded a male voice later identified as Mr. Guss' transmitting on that frequency. The FCC agents used direction finding equipment and determined that the transmissions were coming from Mr. Guss' residence at 240 Wendover Road, S.W., Palm Bay, Florida. There were two vertical antennas mounted on the tower behind his house. 4. On March 4, 1997, the FCC agents, accompanied by an officer from the Palm Bay Police Department, questioned Mr. Guss regarding the transmissions on frequency 154.600 MHz. Mr. Guss denied any knowledge of the incident. Mr. Guss also denied any knowledge about the use of frequency 154.600 MHz. One of the FCC agents asked Mr. Guss if an inspection of his radio equipment could be performed. According to the agents, after some delay, Mr. Guss made a hand held transmitter and a scanner available for inspection. The record shows that Mr. Guss holds a land mobile radio service license, KAF5993, and an amateur license, KF4MWT. On inspection, the hand held transmitter could not be operated on frequency 154.600 MHz. Mr. Guss repeatedly denied owning any radio which could transmit on frequency 154.600 MHz. The FCC agents completed the inspection by warning Mr. Guss about the unauthorized transmissions on frequency 154.600 MHz. 5. On March 17, 1997, the Tampa District Office sent Mr. Jeff G. Guss a letter regarding the March 4, 1997 unlicensed operation on frequency 154.600 MHz, which had been traced and found to be emanating from his house. The letter specifically ordered Mr. Guss to reply in writing within ten days of receipt. On March 21, 1997, Mr. Guss called the Tampa District Office regarding the letter. Mr. Guss again denied that he transmitted on frequency 154.600 MHz and again denied owning a radio which could transmit on that frequency. Mr. Guss was told that his reply to the warning letter must be submitted in writing. However, a written response was never received. 6. On August 25, 1997, the Tampa District Office received another complaint from the Palm Bay Police Department that someone was causing malicious interference to an amateur repeater used by the Palm Bay volunteer police force. The Palm Bay Police Department informed the Tampa District Office that the person harassed users of the frequency and generally disrupted normal use of the repeater. 7. Two FCC agents from the Tampa District Office went to Palm Bay to investigate the interference on August 27, 1997. The FCC agents monitored the repeater and used direction finding equipment to trace the source of the transmissions on the repeater input frequency. The FCC agents noted that the source of the transmissions was mobile and pinpointed the source of the transmissions to a pick-up truck. Mr. Guss was riding in the bed of the pick-up truck when it was spotted by the agents. The agents recognized Mr. Guss from the March 4, 1997 inspection. 8. That same day (August 27, 1997), the two FCC agents, along with two Palm Bay Police Officers approached Mr. Guss' house at 240 Wendover Road, S.W., Palm Bay, Florida. Mr. Guss met the FCC agents at the entrance to his garage. The FCC agents questioned Mr. Guss about the transmissions on the amateur repeater input frequency. Mr. Guss denied any knowledge of the transmissions. 9. The FCC agents then asked to inspect Mr. Guss' amateur station. Mr. Guss allowed the FCC agents to inspect two hand-held units. The first hand-held unit transmitted on amateur frequencies. The second hand-held unit transmitted on a frequency of 154.600 MHz, the same frequency which had been receiving interference on March 4, 1997. Prior to this inspection, Mr. Guss had repeatedly denied that he owned a radio which transmited on frequency 154.600 MHz. 10. While performing the inspection of Mr. Guss' hand-held units, one of the FCC agents noticed a radio antenna protruding from the back of a van parked across the street from Mr. Guss' house. When asked, Mr. Guss admitted owning the vehicle. The FCC agents approached the vehicle and noticed what appeared to be a power linear amplifier located inside the vehicle. The FCC agents requested to inspect the radio equipment inside the vehicle. Mr. Guss refused to allow the inspection. 11. On September 11, 1997, the Tampa District Office sent Mr. Guss an Official Notice of Violation ("NOV") regarding the unidentified transmissions on the repeater input frequency and his failure to allow an inspection of the radio equipment in his vehicle. The NOV required a response within ten (10) days of its receipt. Mr. Guss did not respond to the NOV. 12. On February 11, 1998, the Bureau's Tampa District Office issued the subject NAL to Mr. Guss. The forfeiture amount assessed was based on willful violations of Section 301 of the Act, and Sections 97.103(c) and 1.89 of the Rules. The NAL found a violation of Section 301 of the Act based on the March 4, 1997 investigation, which determined that unlicensed operation on frequency 154.600 MHz was coming from Mr. Guss' home, and the subsequent August 27, 1997 investigation that revealed Mr. Guss possessed radio equipment capable of transmitting on frequency 154.600 MHz. A violation of Section 97.103(c) of the Rules was determined to have occurred in light of Mr. Guss' responsibilities as an amateur licensee and his failure to permit an inspection of the radio equipment in his van during the August 27, 1997 investigation. Finally, a violation of Section 1.89 of the Rules was determined to have occurred for Mr. Guss' failure to respond to the March 17, 1997 letter and the September 11, 1997 NOV issued by the Bureau's Tampa District Office. DISCUSSION 13. We have carefully evaluated the arguments raised by Mr. Guss and the record of the case. Based on our review, we conclude, as indicated below, that Jeffrey G. Guss is liable for a forfeiture in the amount of $2,500 for willful violations of Section 301 of the Act, and Sections 97.103(c) and 1.89 of the Rules. 14. Respondent makes several arguments which take issue with the finding that he was the operator responsible for the interference on frequency 154.600 MHz. He contends that the Commission offered no "voiceprint" evidence to prove that he was responsible for the transmissions, and that none of the taped transmissions provided by the FCC sound like him. He also asserts that the transmissions could not have been made by him, because the timing of the transmissions conflicted with his daily schedule. The agent conducting the investigation made a voice identification based on previous transmissions as well as direction finding evidence which pinpointed the transmission to his home. Unlike the circumstances in the two cases cited by Mr. Guss, In re David Cadden, 8 FCC Rcd 7604 (1993), and In re Luanne Brown, 9 FCC Rcd 1875 (1994), in the instant case, the evidence is clear that Mr. Guss was the person operating his radio station. Further, no other adult male capable of generating the same voice and radio transmissions was present at Mr. Guss' home at the time the transmissions were traced to his home. Additionally, upon a subsequent visit to Mr. Guss' home, he did in fact possess a radio capable of operating on the frequency in question. 15. We are also unpersuaded by respondent's arguments regarding the reliability of the technical evidence. FCC agents are trained in direction-finding and used equipment which was properly calibrated prior to taking measurements. Further, the use of such direction-finding equipment has been found to be probative and reliable evidence. See Ernest M. Petter, 57 FCC 2d 716 (1976). The fact that the times the transmissions were recorded conflicted with Mr. Guss' purported "daily routine" is immaterial. The investigatory findings and technical measurements made by the Commission's agents were made by these agents as part of their normal course of work which is fully supported by the evidence of record. Mr. Guss' avowed daily routine is not. 16. With respect to Mr. Guss' argument that he was not required to make his van available for inspection because it was not a "station" within the meaning of Section 97.103(c) of the Rules, we disagree. Mr. Guss contends that the van was equipped with a CB antenna, and that the equipment which the agent noticed inside the van was an audio power amplifier rather than a linear power amplifier. During the investigation, the FCC agent, in addition to observing the CB antenna was also able to observe radio frequency coaxial cable going to the antenna. Because this type of cable is not the type that would be used with an audio amplifier, the agent concluded that the equipment observed inside the van was associated with the operation of a station. We believe that the agent's observations, in conjunction with the fact that Mr. Guss holds an amateur license under Part 97 of the Commission's Rules, was sufficient to require Mr. Guss to permit the requested inspection. Thus, his failure to permit the inspection is a violation of Section 97.103(c) of the Rules. 17. Turning to the violation of Section 1.89 of the Rules, the record indicates, and is supported by Mr. Guss' own admission, that he did receive the March 17, 1997 letter from the Tampa District Office. The letter notified him of the unlicensed operation violation on frequency 154.600 MHz and requested a response to the violation. Mr. Guss also admits that he did not respond to this official correspondence. Under the facts admitted, respondent violated Section 1.89 of the Rules when he chose not to respond to the written correspondence. See David A. Hernandez d/b/a Crystal Communications, 12 FCC Rcd 22044 (CIB 1997); See also Metals Broadcasting Co., Inc., 20 FCC 2d 242 (1969) (failure to respond to Commission correspondence viewed as violation of Section 1.89 of the Rules and resulted in issuance of NAL). Respondent's argument that the use of the word "requested" in the letter made a response appear optional is not supported by the tenor or language of the letter itself. Moreover, we additionally find Mr. Guss' argument unpersuasive, especially in light of the fact that he was verbally told by the Tampa District Office to provide a written response to the letter. With respect to his failure to respond to the September 11, 1997 NOV, Mr. Guss states that a response was not provided because he never received the mailed copy. However, the record indicates that the NOV, which was sent by certified mail, was returned to the Tampa District Office as "refused" rather than "unclaimed." Consequently, we find that Mr. Guss, who is a Commission licensee, cannot avoid his responsibility to respond to Commission correspondence when he refuses to take delivery of the Commission correspondence which requires the response. See Section 1.5(b) of the Commission's Rules, 47 C.F.R.  1.5(b) ("The licensee is responsible for making any arrangements which may be necessary in his particular circumstances to assure that Commission ... correspondence delivered to ... [his official] address will promptly reach him or some person authorized by him to act in his behalf.") 18. Based on the above violations, the forfeiture penalty was assessed pursuant to Section 503 of the Act, 47 U.S.C.  503, and Section 1.80 of the rules, 47 C.F.R. 1.80. In assessing the forfeiture amount, the forfeiture standards established in Section 503 of the Act and the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 12 FCC Rcd 17087 (1997) were followed. 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 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 have reviewed Mr. Guss' response and find that evidence has not been presented which would warrant mitigation of the forfeiture amount. ORDERING CLAUSES 19. ACCORDINGLY, IT IS ORDERED that, pursuant to 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, Jeffrey G. Guss IS LIABLE FOR A MONETARY FORFEITURE in the amount of two thousand five hundred dollars ($2,500) for violation of Section 301 of the Communications Act, 47 U.S.C.  301, and Sections 97.103(c) and 1.89 of the Commission's Rules, 47 C.F.R.  97.103(c) and 1.89. 20. IT IS FURTHER ORDERED, pursuant to Section 1.80(f) of the Commission's Rules, 47 C.F.R.  1.80(f), that Jeffrey G. Guss shall, within thirty (30) days of the release of this Forfeiture Order pay the full amount of the forfeiture. Forfeitures shall be paid by check, credit card or money order payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No. 815TP0001" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for Reconsideration pursuant to Section 1.106, 47 C.F.R.  1.1.106 of the Rules, or Applications for Review pursuant to Section 1.115, 47 C.F.R.  1.115, should be sent to: Chief, Compliance Division Federal Communications Commission 1919 M Street, N.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3AJC 21. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return-receipt requested, to Jeffrey G. Guss and to his attorney. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau