******************************************************** 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 ) ) James R. Farlow ) NAL/Acct. No. 915NF0001 Thomasville, North Carolina ) FORFEITURE ORDER Adopted: March 17, 1999 Released: March 19, 1999 By the Director, Legal Services Group Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL") for a monetary forfeiture issued on November 18, 1998 to James R. Farlow and the response thereto filed by Mr. Farlow. The NAL proposed imposition of a forfeiture against Mr. Farlow in the amount of $7,000 pursuant to 47 U.S.C  503(b) and 47 C.F.R.  1.80 for willful violation of 47 U.S.C.  303(n) and 47 C.F.R.  95.426 (CB Rule 26). For the reasons stated below, we affirm the $7,000 forfeiture amount. BACKGROUND 2. On March 10, 1998, the Bureau's Norfolk, Virginia, Resident Agent Office received a complaint from an individual, in Thomasville, North Carolina, who had been experiencing interference to her home electronic equipment from Mr. Farlow's citizens band ("CB") radio operation. The complaint also contained allegations of use of a linear amplifier by Mr. Farlow in violation of the rules governing CB radio service, 47 C.F.R.  95.401 - 95.428. In response to another complaint concerning Mr. Farlow's CB radio operation, on September 8, 1998, an agent from the Norfolk Office went to the Thomasville, North Carolina, area to investigate the complaint. 3. While there, the agent confirmed that the interference was still a problem for Mr. Farlow's neighbors. In order to determine whether Mr. Farlow's CB radio operation was still the source of the interference, the agent decided that an inspection of Mr. Farlow's equipment would be necessary. At 6:30 p.m. the agent knocked on the front door of 103 Browning Drive, the residence of Mr. Farlow. Mr. Farlow came from the back of his house in reply to the agent's knock. The agent properly identified himself as a representative of the FCC, showed Mr. Farlow his official badge, and asked to inspect Mr. Farlow's CB radio station. Mr. Farlow then led the agent to his back door where he hesitated and then asked the agent for a search warrant. The agent explained to Mr. Farlow that both  303(n), and  95.426 (CB Rule 26), authorize inspection of all CB radio stations by the FCC and a search warrant was not necessary. Nevertheless, Mr. Farlow refused to allow the agent entry to his residence in order to inspect the station. After observing a CB radio in the truck parked in the driveway at 103 Browning Drive, Thomasville, North Carolina, the agent also requested that he be allowed access to inspect Mr. Farlow's mobile CB radio station. Mr. Farlow again refused to allow the agent to inspect his CB station. Subsequent to the request for inspection, the Bureau's Norfolk Office issued the subject NAL on November 18, 1998, for the willful violations of  303(n) and  95.426 (CB Rule 26). 4. In responding to the NAL, Mr. Farlow contends that he attempted to resolve the interference complaints of his neighbors although he had doubts that his CB radio station was the source of the interference. Furthermore, Mr. Farlow states that, at the time of the attempted inspection, he no longer had the CB equipment at his residence because of all the complaints from his neighbors. Mr. Farlow's response to the NAL further contends that he was unable to let the agent into his house as his wife was indisposed. Mr. Farlow also claims that the agent did not have a search warrant, and that the agent would not allow him the time to call his attorney. Furthermore, Mr. Farlow asserts that he had recently been threatened by neighbors and felt uncomfortable allowing a "total stranger [who] shows up after business hours in a used faded Explorer without any recognizable law enforcement, no search warrant, no previous paperwork or anything to explain my rights." Finally, Mr. Farlow states that he did not know who the FCC was, nor did he know the rules and regulations associated with operating a CB radio station. DISCUSSION 5. The Bureau's Norfolk Office issued the forfeiture pursuant to  503 and 1.80. In assessing the forfeiture amount, the Norfolk Office followed the forfeiture standards established in  503 and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate Guidelines, 12 FCC Rcd 17087 (1997), recon. pending ("Policy Statement"). It is required by  503(b) 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. See, 47 U.S.C.  503(b)(2)(D). 6. We have reviewed Mr. Farlow's arguments concerning the events of September 8, 1998, and we find that none of them are sufficient to eliminate the liability associated with the noted violations. We believe that if Mr. Farlow no longer had CB radio equipment in his residence that he should have stated so at the time of the request for inspection. He did not. In fact, a neighbor of Mr. Farlow's had identified Mr. Farlow's voice in a transmission that caused interference to her home electronic equipment only a few days prior to the inspection. Additionally, a neighbor observed Mr. Farlow removing the CB radio equipment from his residence on September 9, 1998, the day after the attempted inspection. Moreover, the FCC agent visually observed that a mobile CB radio station was present in Mr. Farlow's truck on September 8, 1998. Mr. Farlow does not offer an explanation as to why he denied the agent entry to inspect his truck. Mr. Farlow does not offer any mitigating circumstances which would excuse his refusal to allow inspection of his CB radio station. The hour of the attempted inspection, 6:30 p.m., was during daylight hours, and the agent presented legitimate FCC identification credentials, which according to the agent, was acknowledged by Mr. Farlow as being "official." 7. Under  303(n) the FCC has the "authority to inspect all radio installations associated with stations required to be licensed by any Act, or which the Commission by rule has authorized to operate without a license under Section 307(e)(1)." 47 U.S.C.  303(n). This definition expressly includes CB radio stations as those that the FCC is authorized to inspect. Likewise, under  95.426, "[i]f an authorized FCC representative requests to inspect your CB station, you must make your CB station and records available for inspection." 47 C.F.R.  95.426(a). Thus, an FCC agent does not need a search warrant to inspect a radio station. See Norfolk Southern Railway Company, 11 FCC Rcd 519 (CIB 1996) (the right to inspect a station is one of the cornerstones of the FCC's ability to ensure compliance with the Communications Act and the Commission's Rules). Pursuant to 47 C.F.R.  95.402(a)(1), Mr. Farlow, as a CB operator, had the responsibility to be familiar with the CB rules and to comply with these rules. "The Commission expects its licensees (including CB users authorized by CB Rule 4, 47 C.F.R.  95.404, to operate without an individual station authorization) to be familiar with those rules that govern the class of station they operate. Claims of unfamiliarity with rules cannot be used to justify mitigation of penalties." William J. McCray, Jr., 9 FCC Rcd 1897 (FOB 1994). As such, the violations of  303(n) and  95.426 were willful. 8. In sum, we have examined Mr. Farlow's response in conjunction with the Policy Statement and the above statutory factors and conclude that Mr. Farlow has failed to provide a sufficient justification for reducing the forfeiture amount. We therefore affirm the forfeiture amount of $7,000. 9. ACCORDINGLY, IT IS ORDERED that, pursuant to 47 U.S.C.  503(b), 47 C.F.R.  1.80, and the Policy Statement, 12 FCC Rcd 17087, James R. Farlow IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for willful violation of 47 U.S.C.  303(n) and 47 C.F.R.  95.426 (CB Rule 26). 10. IT IS FURTHER ORDERED that, pursuant to 47 C.F.R. 1.80(f), James R. Farlow shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $7,000. Payment of the forfeiture shall be made in U.S. dollars, by check, credit card or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. The remittance should be marked NAL/Acct. No. 915NF0001, and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to 47 C.F.R.  1.106, or applications for review pursuant to 47 C.F.R.  1.115 should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3-DLH Compliance and Information Bureau Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 11. IT IS FURTHER ORDERED that, a copy of this Order shall be sent certified mail, return receipt requested, to James R. Farlow, 103 Browning Drive, Thomasville, North Carolina 27360. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau