$// Andrew R. Yoder, MO&O FCC No. 94-66//4 $/ 1.115 Application for Review/$ $/ 15.29 Inspection by the Commission/$ $/ 300.301 License for Radio Communication or Transmission of Energy/$ $/ 500.503 Forfeitures in cases of rebates and offsets/$ FCC 94-66 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Andrew R. Yoder ) NAL/Acct. No. 215LR0001 Chambersburg, Pennsylvania ) ) MEMORANDUM OPINION AND ORDER Adopted: March 10, 1994 Released: March 11, 1994 By the Commission: I. Introduction 1. The Commission has before it a Motion for Stay, a Motion To Accept Late- Filed Pleading and Request for Waiver of 47 C.F.R.  1.115(f)(1), and an Application for Review filed by Andrew R. Yoder, through counsel, in response to a Forfeiture Order issued to Mr. Yoder on July 2, 1992. For the reasons stated below, we dismiss his Motion for Stay, grant his Motion To Accept Late-Filed Pleadings and Request for Waiver of 47 C.F.R. 1.115(f)(1), and deny his Application for Review. II. Background 2. On May 21, 1992, the Laurel, Maryland, Office of the Field Operations Bureau issued a Notice of Apparent Liability (NAL) for Monetary Forfeiture in the amount of $17,500 to Mr. Yoder pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), for willful and repeated violation of Section 301 of the Act, 47 U.S.C.  301, and Section 15.29 of the Commission's Rules, 47 C.F.R.  15.29. Commission monitoring activities and investigations disclosed that Mr. Yoder was operating a broadcast station without an instrument of authorization and had refused to allow an FCC official to inspect the "pirate" station. On July 2, 1992, the Laurel Office issued a Forfeiture Order to Mr. Yoder assessing a $17,500 forfeiture against him in this matter. Mr. Yoder filed his application for review and related pleadings on December 17, 1992. III. Discussion 3. Because no other parties are involved, and in order to permit a fuller explanation of the Bureau order, we will accept the late-filed application for review and address the arguments raised in it. 4. In his Application for Review of the Forfeiture Order, Mr. Yoder argues that review is necessary to avoid a violation of his due process rights under Section 555(b) of the Administrative Procedure Act (APA), 5 U.S.C.  555(b). He asserts that given the possible criminal sanctions and the high amount of the forfeiture, the agency should have advised him to retain an attorney. For this reason, Mr. Yoder argues, the public interest demands that the Commission vacate the Bureau's decision. We reject this contention. Section 555(b) of the APA does not impose any duty on an agency to advise people regarding representation; it simply provides that a person who is compelled to appear before an agency is entitled to be accompanied, represented, or advised by counsel. The FCC has no obligation to inform parties to FCC proceedings of their right to be represented by counsel. Compare Miranda v. Arizona, 384 U.S. 436 (1966). 5. We next address Mr. Yoder's argument that the Bureau failed to establish the necessary evidentiary basis for the forfeiture. Mr. Yoder contends that the Bureau's reliance on evidence it has gathered regarding "Radio USA" (a pirate radio station) operations is inappropriate because the Bureau has not established that he was the operator or that the "station" which the FCC investigators intercepted was being operated by the same individual in all instances. Mr. Yoder argues that the use of evidence regarding his presence at a campground at the time transmissions from an illegal radio station were intercepted to link him with operations which were later intercepted from his parent's home was improper use of "hearsay" testimony. He argues that use of this "hearsay" and circumstantial evidence deprived him of an opportunity to confront witnesses against him. 6. We reject Mr. Yoder's argument that the Commission's finding of liability was based on unacceptable hearsay evidence. The Commission's finding of liability was based on documented evidence obtained with each transmission from direction finding techniques and voice identification which are accepted evidentiary methods. The same FCC inspector intercepted the transmissions at issue. Thus, the inspector to whom Mr. Yoder refused entrance and permission to inspect the station on February 23, 1992, was the same inspector who traced the other transmissions, including the transmissions at the campground. Uncontroverted evidence obtained from the campground, such as business records, and discussions with campground personnel, corroborate Mr. Yoder's presence in the campground during the time of the transmissions. Moreover, from his review of tapes made of the "Radio USA" transmission, as well as the tapes from September 28, 1991, October 11 and 12, 1991 and February 22 and 23, 1992, the inspector confirmed in each instance that the voice was the same voice of the man who refused him entry to inspect the station on February 23,1992, -- Mr. Yoder. 7. We also reject Mr. Yoder's argument that the FCC inspector's request to inspect the station was unreasonable. At 3:10 a.m. EST, the inspector requested access to the premises for the purpose of inspecting the radio station equipment which was operated between 2:30 a.m and 3:05 a.m. EST. Mr. Yoder was apparently operating a radio station without a license. Section 303(n) of the Act grants authority to inspect, inter alia, radio stations required to be licensed by the Act. 47 U.S.C.  303(n). See also 47 C.F.R.  73.1225. Thus, Mr. Yoder was engaged in an activity for which the FCC had authority to inspect. The Commission views the time of operation of a radio station as a reasonable time within which to request an inspection. Further, it is reasonable to request such access to the premises from which the broadcast station is operating. See 47 C.F.R.  73.1225(a) (broadcast stations to be made available for inspection "at any time it is in operation.") Commission investigators traced the February 23, 1992, radio transmissions to their source: the home of Mr. Yoder's parents. At the time the transmissions were made, lights were on in the home, and Mr. Yoder answered the door when investigators knocked. Mr. Yoder was subject to inspection during operation, and had an opportunity to make the radio equipment available for inspection, but refused. For that reason, we reject Mr. Yoder's argument that the amount of the forfeiture should be lowered to exclude the portion attributable to his refusal to allow the inspection. 8. Mr. Yoder also contends that the Bureau failed to provide him with notice of the specific dates on which the Section 301 violations (unlicensed operations) were alleged to have occurred. We note that paragraphs 4 through 7 of the NAL list specific dates and times for each of the violations alleged. 9. Finally, Mr. Yoder raises arguments regarding due process and APA requirements. He argues that the Commission violated his due process rights by denying him an effective opportunity "to make meaningful comment" prior to issuance of the forfeiture. He also urges mitigation or withdrawal of the forfeiture arguing that the amount levied ($17,500) so varied from forfeiture amounts levied in various other Commission actions for similar violations that it was arbitrary and capricious. 10. Mr. Yoder appears to be arguing that he should have been afforded a full hearing. Section 503(b)(4)(C) of the Communications Act, however, allows the Commission to issue forfeitures without a hearing, using the notice of apparent liability written response procedures. 47 C.F.R.  1.80(e). Moreover, since this type of forfeiture proceeding is ultimately subject to a trial de novo in a court pursuant to Section 504(a) of the Act, 47 U.S.C. 504(a), that represents his procedural due process right to a hearing in such forfeiture matters. See Metromedia, Inc., 38 RR 2d 785, 798 (1976). 11. We also reject his contention that the amount of the forfeiture is arbitrary and capricious. Mr. Yoder was assessed a forfeiture of $10,000 for operating an unlicensed station and $7,500 for failure to permit inspection. The Bureau was guided by the Commission's Policy Statement in establishing the base amount of the forfeiture and in applying upward and downward adjustment criteria. Policy Statement, Standard for Assessing Forfeitures, 6 FCC Rcd. 4695 (1991), modified in part on recon., 7 FCC Rcd 5339 (1992), petition for review pending subnom. USTA v. FCC, No. 92-1321 (D.C. Cir. filed July 30, 1992). See also Policy Statement, Standards for Assessing Forfeitures, 8 FCC Rcd 6215 (1993). Although non-binding, the Policy Statement provides guidance for treating similar violations in a consistent manner. See 1991 Policy Statement, 7 FCC Rcd 5339 (1992). The cases cited by Mr. Yoder as demonstrating significantly lower amounts for purportedly similar violations, with one arguable exception, present such different facts, circumstances, and legal issues as to be inapposite. Although the Bailey case, In the Matter of John G. Bailey, (July 16, 1992), involved the unlicensed operation of a station, the Field Operations Bureau initially sought to impose a $2,000 forfeiture rather than the $8,000 base forfeiture amount based on its assessment that the violation was minor given all circumstances, including the fact that the individual was a first time and one- time only violator. The Bureau further considered Mr. Bailey's response, supported by documentation of inability to pay. We recognize that as in Bailey and some of the cases cited in footnote 8, Mr. Yoder is also a first time offender. However, because Mr. Yoder is the author of a book indicating his knowledge and familiarity with this area, see Pirate Radio Stations (1990), as an equitable matter we do not believe it is appropriate for him to receive a downward adjustment for no history of prior violations. 12. Finally, we reject Mr. Yoder's argument that the Bureau lacked authority to issue a forfeiture for violations of the Act rather than specific rule provisions. The rules provide that the Bureau Chief and Engineer in Charge at each of the Commission's field offices may issue forfeitures for violations of the Act as well as rule violations. See 47 C.F.R.  0.311, 0.314, 1.80. He also appears to have misread or misunderstood the language of Section 503(b) of the Act. Mr. Yoder argues that the Bureau violated its own procedures under Section 1.80(d) by failing to issue a citation prior to issuing the Notice of Forfeiture. Section 503(b) and Section 1.80(d) specify that forfeitures may be issued to non-licensees engaged in activities for which a license is required without the need for a prior citation or meeting with a Commission official. Mr. Yoder was engaged in such activity and, therefore, did not warrant a prior notice. Regarding the sufficiency of the notice given to Mr. Yoder, issuance of a Notice of Apparent Liability fulfills all requirements for a notice, since it advises the recipient of the Commission's intent to issue a forfeiture order and states the legal and factual bases for the alleged violations. V. Ordering Clauses 13. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the Commission's Rules, 47 C.F.R.  1.115, we GRANT Mr. Yoder's Motion To Accept- Filed Pleading, we DISMISS his Motion for Stay, and DENY his Application for Review. 14. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), and Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R.  1.80(f)(4), that Mr. Andrew R. Yoder SHALL FORFEIT the amount of $17,500 within thirty (30) days of the release of this ORDER. Forfeitures shall be paid by check or money order made payable to the Federal Communications Commission. The remittance should be marked "Acct. No. 215LR0001" and mailed to the following address: Federal Communications Commission P.O. Box 73482 Chicago, Illinois 60673-7482 FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary