******************************************************** 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 ) ) Carl Carlson ) Post Creek Seafood, Inc. ) NAL/Acct. No. 915PA0006 Wildwood, New Jersey 08260 ) FORFEITURE ORDER Adopted: August 24, 1999 Released: August 25, 1999 By the Director, Legal Services Group, Compliance and Information Bureau: I. INTRODUCTION 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL"), issued on March 11, 1999, to Carl Carlson, President of Post Creek Seafood, Inc., ("Post Creek Seafood") and Mr. Carlson's April 9, 1999, reply to the NAL submitted by his attorney. The NAL proposes imposition of a forfeiture in the amount of $2,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules ("Rules"), 47 C.F.R. 1.80, for willful violation of Section 301 of the Act, 47 U.S.C.  301. For the reasons noted below, we affirm the forfeiture of $2,000. II. BACKGROUND 2. The Duty Officer, United States Coast Guard, Atlantic City, New Jersey, telephoned the Bureau's Philadelphia, Pennsylvania Field Office on the evening of February 11, 1999 to report that a "stuck carrier" (i.e., unmodulated signal), was causing harmful interference to VHF Marine Channel 13. Marine vessels underway use VHF Marine Channel 13 to communicate with drawbridge operators. According to the Duty Officer, the "stuck carrier" was interfering with communications between marine vessels underway and three drawbridges in the South Jersey area from Stone Harbor to Cape May. 3. The Bureau's Philadelphia Field Office dispatched an FCC agent equipped with a Mobile Automated Direction Finding ("MADF") vehicle to locate the "stuck carrier" and to resolve the interference. In the early morning hours of February 12, 1999, the FCC agent, utilizing the MADF equipment, determined that the "stuck carrier" was emanating from a radio transceiver located in a Post Creek Seafood office. A Post Creek Seafood employee, who had been summoned to the scene by the Wildwood New Jersey Police, contacted Mr. Carlson about the interference and went to Mr. Carlson's residence to retrieve a key for the Post Creek Seafood office. After the employee returned with the key, the FCC agent was permitted to enter the office and test a transceiver found therein. The FCC agent determined that the transceiver was not functioning properly and switched it off at 1:03 a.m. 4. The Post Creek Seafood employee then telephoned Mr. Carlson, who spoke with the FCC agent. The FCC agent notified Mr. Carlson that Post Creek Seafood had been operating a coast station without a license and that it had been causing interference. Mr. Carlson told the FCC agent that he had purchased the transceiver when he had purchased Post Creek Seafood, and admitted that he had not obtained a license for the transceiver. 5. On March 11, 1999, the Bureau's Philadelphia Field Office issued the subject NAL in the amount of $2,000 to Mr. Carlson for the willful violation of Section 301 of the Act. III. DISCUSSION 6. The Bureau's Philadelphia Field Office issued the monetary forfeiture penalty pursuant to Section 503(b) of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount, the Bureau's Philadelphia Field Office followed the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. pending ("Policy Statement"). In assessing the monetary forfeiture penalty, we must take into account the statutory factors set forth in Section 503(b)(2)(D) of the Act, which include 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). 7. In his response to the NAL, Mr. Carlson provides an affidavit which renews his claim that he purchased the transceiver when he, along with several others, purchased Post Creek Seafood. He mistakenly believed that the Commission had licensed the transceiver. According to Mr. Carlson: [t]the microphone button stuck or the line simply stayed open and didn't unkey after the communication. The condition had never previously occurred and neither myself nor any employees of Post Creek Seafood, Inc. were aware that this condition had or could occur. Since the room where the radio transmitter is located is rarely occupied, no one noticed that the line stayed open. 8. He has since taken the transceiver out-of-service for repair. Once it is functioning properly, Mr. Carlson avers that he would file for an appropriate license with the Commission. 9. Lastly, neither Mr. Carlson nor Post Creek Seafood, which he claims has an annual income of $75,000, is listed in the Commission's records as a violator. 10. After reviewing the record and Mr. Carlson's reply and subjecting them to the statutory factors and the Policy Statement, we conclude that sufficient justification exists to affirm Mr. Carlson's monetary forfeiture penalty of $2,000. Specifically, the Bureau's Philadelphia Field Office did not assess the full monetary forfeiture penalty (i.e., $11,000) against Mr. Carlson in part because (1) he admitted that he did not have a license for his transceiver; (2) he took the transceiver out-of-service for repair; and (3) he stated that he would file for an appropriate license with the Commission; and (4) neither Mr. Carlson, nor Post Creek Seafood is listed in the Commission's records as a violator. As such, the factors presented by Mr. Carlson's response to the NAL have already been considered in determining the appropriate amount of the NAL. Therefore, we find that no further reduction in the amount is warranted. IV. ORDERING CLAUSES 11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Rules, 47 C.F.R.  1.80, that Carl Carlson IS LIABLE FOR A MONETARY FORFEITURE in the amount of two thousand dollars ($2,000) for violation of Section 301 of the Act of 1934, as amended, 47 U.S.C.  301. 12 IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R.  1.80(f), that Carl Carlson shall, within thirty (30) days of the date of release of this FORFEITURE ORDER, pay the full amount of the forfeiture. Payment of the forfeitures shall be made by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. The remittance should be marked "NAL/Acct. No. 915PA0006" 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 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, SW Washington, D.C. 20554 Attn: Mail Stop 1500E3-DLH Compliance and Information Bureau 13. IT IS FURTHER ORDERED that, a copy of this FORFEITURE ORDER shall be sent by certified mail, return-receipt requested, to Carl Carlson, President, Post Creek Seafood, Inc., 450 Dock Street, Wildwood, New Jersey 08260 and a copy to his attorney, David S. DeWeese, Esquire, Stagliano & DeWeese, P.A., 3200 Pacific Avenue, Wildwood, New Jersey 08260. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau