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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                )       File No. EB-02-CF-712
                                )       
Mark A. Clay                    )       NAL/Acct.             No. 
200332340003
Huntington, West Virginia       )       
                                )       FRN: 0005-3791-77


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                        Released: January 29, 
2003

By the District Director, Columbia Office, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
("NAL"), we  find that  Mark A.  Clay (``Clay'')  has  apparently 
violated Section  301  of  the Communications  Act  of  1934,  as 
amended (``Act'').1  Clay operated an FM broadcast station on the 
frequency 98.1  MHz at  5666 Lynn  Creek Road,  Huntington,  West 
Virginia without a license.  We conclude that Clay is  apparently 
liable for  forfeiture  in the  amount  of ten  thousand  dollars 
($10,000). 

                         II.  BACKGROUND
 
     2.   On  May  30,  2002,  an  agent  from  the  Commission's 
Columbia Office, operating  an FCC  direction-finding vehicle  in 
the Huntington, West Virginia, area monitored an unidentified  FM 
broadcast station on  the frequency 98.1  MHz.  Using  direction-
finding equipment and techniques,  the agent determined that  the 
source of the signal on 98.1 MHz was an antenna near a trailer at 
5666 Lynn Creek  Road in Huntington,  West Virginia.  While  near 
the station, the agent measured the field strength of the signal.  
The broadcast station exceeded the  permissible level for a  non-
licensed  radio  transmitter  by  1,431  times.   Accordingly,  a 
license was required for the operation of the broadcast  station.  
Based on the Commission's records, no license had been issued for 
the operation of any FM broadcast station at this location.
                                             
     3.   Later in the  day on  May 30, 2002,  while the  station 
continued operation, the agent inspected the radio station.   The 
agent found Clay at  the station in  control of the  transmitter.  
Clay admitted to operating the  station without a license.   Clay 
informed the agent that he held an amateur radio station  license 
N8QYK.  The  agent  warned  Clay  concerning  the  unlicensed  FM 
broadcast operation.  Clay  shut the transmitter  off just  after 
the agent's departure.

     4.   On  June  25,  2002,  the  Columbia  Office  sent,  via 
certified mail, a letter addressed to Clay, 5666 Lynn Creek Road, 
Huntington, West  Virginia 25704.   The letter  warned Clay  that 
operation of the unlicensed radio  station on the frequency  98.1 
MHz violated Section  301 of  the Act  and directed  the Clay  to 
terminate operation of the  unlicensed station immediately.   The 
letter requested Clay to submit a written response within 10 days 
of receipt of the letter.
                                        
     5.   By letter dated July 2, 2002, Clay submitted a response 
to the Columbia  Office.  He  acknowledged that  he operated  the 
broadcast station  at  5666  Lynn Creek  Road,  Huntington,  West 
Virginia, which transmitted on the frequency 98.1 MHz.  He stated 
that he  had  ceased  operation  of the  station  after  the  FCC 
inspection on May 30, 2002.

     6.   On November 13, 2002, a Commission agent observed radio 
broadcasting on 98.1 MHz, and positively identified the source of 
the  unauthorized  transmissions   as  5666   Lynn  Creek   Road, 
Huntington, West  Virginia.  While  near the  station, the  agent 
measured the field strength of the signal.  The broadcast station 
exceeded  the  permissible   level  for   a  non-licensed   radio 
transmitter by 7,403 times. There was no evidence of a Commission 
authorization for this operation in Huntington, West Virginia.

     7.   On November 14, 2002, Commission agents observed  radio 
broadcasting on 98.1 MHz and positively identified the source  of 
the  unauthorized  transmissions   as  5666   Lynn  Creek   Road, 
Huntington, West Virginia.   While near the  station, the  agents 
measured the field strength of the signal.  The broadcast station 
exceeded  the  permissible   level  for   a  non-licensed   radio 
transmitter  by  7,986  times.   There  was  no  evidence  of   a 
Commission authorization for this  operation in Huntington,  West 
Virginia.

     8.   On November 14, 2002,  Commission agents inspected  the 
radio station.  Clay  was at the  station and in  control of  the 
transmitter.  During the inspection,  Clay admitted to  operating 
the station, and  knowing that the  transmitted signal level  was 
far in excess of that permitted for operation with no  Commission 
authorization.

                           III.  DISCUSSION

     9.   Section 301 of the Act prohibits any person from  using 
or operating  any apparatus  for the  transmission of  energy  or 
communications or signals by radio except under and in accordance 
with the Act and with a license in that behalf granted under  the 
provisions of the Act.  On May  30, 2002, November 13, 2002,  and 
November 14, 2002, Clay operated  an FM broadcast station on  the 
frequency 98.1  MHz at  5666 Lynn  Creek Road,  Huntington,  West 
Virginia, without a license.  Clay  would not have been  required 
to obtain  a  license  to  operate the  stations  if  the  signal 
strengths did  not exceed  the FCC  limits specified  in  Section 
15.239 of the  Rules.2  However,  on May 30,  2002, November  13, 
2002, and  November  14, 2002,  the  agents determined  that  the 
signal strength of the broadcast station exceeded the FCC  limits 
by at least 1,431 times. 
 
     10.  By letter  dated June  25,  2002, the  Columbia  Office 
warned Clay that his operation  of a broadcast station without  a 
license was in violation of  Section 301 of the Act.   Commission 
agents  informed  Clay  that  his  station  exceeded  the  limits 
specified in Section 15.239 of the  Rules, and he did not have  a 
license to  operate  the station.   Further,  Clay holds  an  FCC 
amateur radio service license.  Therefore, Mark A. Clay was aware 
prior to  November  13,  2002,  and  November  14,  2002  of  his 
responsibility to  properly  measure,  adjust  and  maintain  his 
broadcast station to avoid  subsequent violations of Section  301 
of the Act. 

     11.  Based on  the evidence  before us,  we find  that  Clay 
apparently willfully3 and repeatedly4 violated Section 301 of the 
Act.  The Commission's Forfeiture Policy Statement and  Amendment 
of Section  1.80  of  the Rules  to  Incorporate  the  Forfeiture 
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC 
Rcd 303 (1999) (``Forfeiture Policy Statement'')5, sets the  base 
forfeiture  amount  for  unlicensed  operation  at  $10,000.   In 
assessing the  monetary  forfeiture  amount, we  must  take  into 
account the statutory factors  set forth in Section  503(b)(2)(D) 
of the Act,6 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.  Applying the 
Forfeiture Policy  Statement and  the  statutory factors  to  the 
instant case and applying  the inflation adjustments, we  believe 
that a  ten  thousand  dollar ($10,000)  monetary  forfeiture  is 
warranted.

                      IV.  ORDERING CLAUSES

     12.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act7 and  Sections 0.111,  0.311 and  1.80 of  the 
Rules8 Clay is hereby  NOTIFIED of his  APPARENT LIABILITY FOR  A 
FORFEITURE in the  amount of ten  thousand dollars ($10,000)  for 
willfully and repeatedly violating Section 301 of the Act.   

     13.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
OF APPARENT  LIABILITY, Clay  SHALL PAY  the full  amount of  the 
proposed forfeiture  or SHALL  FILE a  written statement  seeking 
reduction or cancellation of the proposed forfeiture.

     14.  Payment of  the forfeiture  may be  made by  mailing  a 
check or similar instrument, payable to the order of the  Federal 
Communications Commission, to the Forfeiture Collection  Section, 
Finance  Branch,  Federal  Communications  Commission,  P.O.  Box 
73482, Chicago, Illinois 60673-7482.  The payment should note the 
NAL/Acct. No. 200332340003, and FRN 0005-3791-77. 

     15.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications  Commission,  Enforcement  Bureau,  Technical  and 
Public Safety Division, 445  12th Street, S.W., Washington,  D.C. 
20554 and MUST INCLUDE THE NAL/Acct. No. 200332340003. 

     16.  The Commission will not consider reducing or  canceling 
a forfeiture in response  to a claim of  inability to pay  unless 
the petitioner  submits: (1)  federal tax  returns for  the  most 
recent  three-year  period;  (2)  financial  statements  prepared 
according to generally accepted accounting practices  (``GAAP''); 
or (3)  some  other  reliable and  objective  documentation  that 
accurately reflects  the petitioner's  current financial  status.  
Any claim  of inability  to pay  must specifically  identify  the 
basis for the claim by  reference to the financial  documentation 
submitted.

     17.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to: Chief,  Revenue and  Receivables Operations  Group, 445  12th 
Street, S.W., Washington, D.C. 20554.9

     18.  Under the Small Business Paperwork Relief Act of  2002, 
Pub L. No.  107-198, 116 Stat.  729 (June 28,  2002), the FCC  is 
engaged in  a two-year  tracking process  regarding the  size  of 
entities involved  in forfeitures.   If you  qualify as  a  small 
entity and  if you  wish to  be  treated as  a small  entity  for 
tracking purposes, please  so certify  to us  within thirty  (30) 
days of this  NAL, either in  your response  to the NAL  or in  a 
separate filing to  be sent  to the Technical  and Public  Safety 
Division.   Your  certification  should  indicate  whether   you, 
including your parent  entity and its  subsidiaries, meet one  of 
the definitions  set forth  in  the list  provided by  the  FCC's 
Office of Communications Business Opportunities (OCBO) set  forth 
in Attachment  A  of this  Notice  of Apparent  Liability.   This 
information will  be  used  for  tracking  purposes  only.   Your 
response or  failure to  respond to  this question  will have  no 
effect on your  rights and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  you  have   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     19.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested,  to  Mark  A.  Clay,  5666  Lynn  Creek  Road, 
Huntington, West Virginia 25704.  


                                FEDERAL            COMMUNICATIONS 
COMMISSION




                                Charles C. Magin
                                District Director
                                Columbia Office



Attachment A:  Condensed List of Small Entities
_________________________

1 47 U.S.C.  301.  
2 47 C.F.R.  15.239

3 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to Section 503(b) of the Act, provides that ``[t]he term 
`willful', when used with reference to the commission or omission 
of any act, means the conscious and deliberate commission or 
omission of such act, irrespective of any intent to violate any 
provision of this Act ....''  See Southern California 
Broadcasting Co., 6 FCC Rcd 4387 (1991).

4 Section 312(f)(2), which also applies to Section 503(b), 
provides:  [t]he term ``repeated'', when used with reference to 
the commission or omission of any act, means the commission or 
omission of such act more than once or, if such commission or 
omission is continuous, for more than one day.

5 47 C.F.R.  1.80.
6
 47 U.S.C  503(b)(2)(D).

7 47 U.S.C.  503(b).

8 47 C.F.R.  0.111 and 0.311.

9 See 47 C.F.R.  1.1914.