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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-04-OR-186
Danny R. McKinney ) NAL/Acct. No.200532620003
Bigelow, Arkansas )
) FRN 0012802120
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 6, 2005
By the District Director, New Orleans Office, South Central
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Danny R. McKinney (``Mr.
McKinney''), apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000) for willful
violation of Section 301 of the Communications Act of 1934,
as amended (``Act'').1 Specifically, we find Mr. McKinney
apparently liable for operating a transmitter on 156.325 MHz
(VHF marine channel 66) without a license.
2. On March 5, 2004, the Commission's New Orleans
Office of the Enforcement Bureau (``New Orleans Office'')
received a complaint about the misuse of VHF marine radios
along the Arkansas River in Arkansas. Agents from the New
Orleans Office contacted several employees of the Arkansas
Game and Fish Commission, who stated they had been trying
unsuccessfully to stem the use of VHF marine radios by area
hunters. Despite their efforts to educate hunters that such
use of VHF marine radios is illegal, the employees stated
hunters continued to use marine frequencies for hunting
3. On November 13, 2004, the opening day of deer
hunting season, agents from the New Orleans Office used
radio direction finding techniques to determine that the
source of a signal on 156.325 MHz (VHF marine channel 66)
was coming from a 1994 green GEO Tracker in Pulaski County,
Arkansas. The driver of the vehicle was observed talking
into a radio microphone. The agents determined that the
driver of the vehicle was Mr. McKinney and that the vehicle
was registered under his name. A search of Commission
records provided no authorization for Mr. McKinney to
operate on this frequency.
4. On December 13, 2004, the New Orleans Office sent
Mr. McKinney a warning letter for unlicensed operation of a
transmitter on 156.325 MHz.
5. On December 23, 2004, the New Orleans Office
received a reply to the warning letter from Mr. McKinney in
which he admitted operating a radio transmitter on 156.325
MHz without a license to talk to a friend, the captain of
the motor vessel, Sioux, and occasionally other people. He
also stated that he had purchased the radio approximately
two years ago.
6. Section 301 of the Act states that no person shall
use or operate any apparatus for the transmission of energy
or communications or signals by radio within the United
States except under and in accordance with the Act and with
a license issued by the Commission.2 The frequency 156.325
MHz has been assigned to VHF Marine Channel 66 for maritime
services.3 Section 80.13 of the Rules states that stations
in the maritime service must be licensed either individually
or by fleet.4 Ship stations may also be licensed by rule
under certain circumstances without an individual license.5
However, ship stations are defined as those radio stations
located on vessels not permanently moored,6and Part 80 of
the Rules does not make any provisions for authorizing
maritime stations in vehicles on land. On November 13,
2004, agents from the New Orleans Office observed Mr.
McKinney operate a radio transmitter on a VHF marine channel
from a land-based vehicle. The Commission's records showed
that Mr. McKinney did not have a license to operate this
station and does not qualify to be licensed by rule. Mr.
McKinney subsequently admitted to the unlicensed operation.
7. Based on the evidence before us, we find that, on
November 13, 2004, Mr. McKinney willfully7 violated Section
301 of the Act by operating an unlicensed radio transmitter
on 156.325 MHz.
8. Pursuant to Section 1.80(b)(4) of the Commission's
Rules (``Rules''),8 the base forfeiture amount for operation
without an instrument of authorization is $10,000. In
assessing the monetary forfeiture amount, we must also 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.9 Considering the entire
record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act,10 and Sections 0.111, 0.311 and
1.80 of the Rules,11 Danny R. McKinney is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 301 of the Act by operating an unlicensed
transmitter on 156.325 MHz.
10. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Danny R. McKinney SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
11. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Payment by check or money order
may be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, IL 60673-7482. Payment by overnight mail may be
sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may
be made to ABA Number 071000013, receiving bank Bank One,
and account number 1165259. The payment should note
NAL/Acct. No. 200532620003, and FRN 0012802120. Requests
for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
12. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, New Orleans Office, Suite 460, 2424 Edenborn Avenue,
Metairie, LA 70001, within thirty days of the release date
of this NAL and MUST INCLUDE THE NAL/Acct. No. referenced
13. 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
14. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Danny R. McKinney at his record of
James C. Hawkins
New Orleans Office
South Central Region
147 U.S.C. § 301
247 U.S.C. § 301.
3See 47 C.F.R. § 80.373(f).
447 C.F.R. § 80.13.
5 47 C.F.R. §80.13(c).
6See 47 C.F.R. §§ 80.5, 80.13.
7Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under 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 4387-88
847 C.F.R. § 1.80(b)(4).
947 U.S.C. § 503(b)(2)(D).
1047 U.S.C. § 503(b).
1147 C.F.R. §§ 0.111, 0.311, 1.80.
12See 47 C.F.R. § 1.1914.