Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-04-TP-499
Russell A. Sims, Jr. ) NAL/Acct. No. 200532700010
Brooksville, Florida )
) FRN 0013798665
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 25, 2005
By the District Director, Tampa Office, South Central
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Russell A. Sims, Jr., owner
/operator of a Citizens Band (``CB'') radio station in
Brooksville, Florida, apparently willfully violated Sections
301 and 303(n) of the Communications Act of 1934, as amended
(``Act''),1 and Section 95.426(a) (CB Rule 26) of the
Commission's Rules (``Rules'')2 by operating a CB radio
station without Commission authorization and refusing to
make his CB radio station available for inspection. We
conclude, pursuant to Section 503(b) of the Act,3 that Mr.
Sims is apparently liable for a forfeiture in the amount of
seventeen thousand dollars ($17,000).
2. On November 1, 2004, in response to an
interference complaint, the Tampa Field Office of the
Commission's Enforcement Bureau (``Tampa Office'') sent Mr.
Sims an Official Notice via certified and regular mail,
restricting the hours of operation of his CB station.
Specifically, Mr. Sims was directed to operate his station
only between the hours of 9:00 a.m. and 1:00 p.m.
3. In response to another interference complaint,
agents from the Tampa Office investigated CB activity in Mr.
Sims' neighborhood. On January 28, 2005, at approximately
7:15 p.m., agents, using mobile direction finding equipment,
positively identified the source of a radio signal on 27.215
MHz, CB Channel 21, as a ground plane antenna located at Mr.
Sims' residence in Brooksville, Florida. The radio
transmissions continued until approximately 9:00 p.m. when
the agents requested to inspect the CB station owned and
operated by Mr. Sims. Mr. Sims refused to allow the agents
to inspect his CB station and stated that he was using an
illegal linear amplifier to get better coverage.
4. Section 503(b) of the Act provides that any person
who willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture
penalty. The term ``willful'' as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions
are committed knowingly.4
5. Section 301 of the Act requires 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.5 Pursuant to Section 95.404 of the
Rules, individual licenses are not required to operate CB
radio stations.6 However, individuals are only authorized
to operate their CB radio stations in accordance with the
Rules.7 Section 95.411 of the Rules prohibits CB operators
from attaching external radio frequency (RF) power
amplifiers (sometimes called linears or linear amplifiers)
to certificated CB transmitters.8 That Section also states
that there are no exceptions to this rule and use of a power
amplifier voids your authority to operate the station.9
Section 95.423 of the Rules requires CB operators to comply
with any restricted hours of CB station operation set forth
in an Official Notice from the Commission.10 On January 28,
2005, Mr. Sims operated his CB radio station from his home
during hours that had officially been designated as
restricted hours of operation. Mr. Sims also admitted that
he was using an illegal linear amplifier to increase his
station's coverage, in violation of Section 95.411. Because
Mr. Sims did not operate his CB radio station consistent
with Commission requirements, he did not comply with Section
95.404 of the Rules. Therefore, he was not authorized to
operate his CB radio station pursuant to Section 95.404 of
the Rules and operated his station without Commission
6. Section 303(n) of the Act states that the
Commission has the authority to inspect all radio
installations associated with stations required to be
licensed to ascertain whether, in operation, they conform to
the requirements of the rules and regulations of the
Commission.11 Section 95.426 of the Rules requires CB
operators to make their CB stations and records available
for inspection upon request by an authorized Commission
representative.12 On January 28, 2005, Commission agents
requested to inspect Mr. Sims' CB radio station, but he
refused to allow the inspection.
7. Based on the evidence before us, we find that Mr.
Sims apparently willfully violated Sections 301 and 303(n)
of the Act and Section 95.426(a) (CB Rule 26) of the Rules
by operating a CB radio station without Commission
authorization and refusing to allow an inspection of his CB
8. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, (``Forfeiture Policy
Statement'') and Section 1.80(b)(4) of the Rules,13 the base
forfeiture amount for operation without an instrument of
authorization is $10,000. The base amount for failure to
permit inspection of a CB radio station is $7,000. 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.14 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that Mr. Sims is apparently
liable for a $17,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended,15 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,16 Russell A. Sims, Jr., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seventeen thousand dollars ($17,000) for violation
of Sections 301 and 303(n) of the Act and Section 95.426(a)
of the Rules by operating his citizens band radio station
without Commission authorization and refusing to allow
inspection of his CB radio station.
10. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Russell A. Sims, Jr., 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. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment
by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for payment of the full amount of
this NAL under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.17
12. The response, if any, must be mailed to the
Federal Communications Commission, Tampa Office, Suite 1215,
2203 N. Lois Avenue, Tampa, FL 33607, within thirty days of
the release date of this NAL and MUST INCLUDE THE NAL/Acct.
No. referenced above.
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 Mr. Russell A. Sims, Jr., at his
address of record.
Ralph M. Barlow
Tampa Office, South Central
147 U.S.C. §§ 301, 303(n).
247 C.F.R. § 95.426(a).
347 U.S.C. § 503(b).
4Section 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 or any rule or
regulation of the Commission authorized by this Act...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387
547 U.S.C. § 301.
647 C.F.R. § 95.404.
847 C.F.R. § 95.411.
947 C.F.R. § 95.411(b).
1047 C.F.R. § 95.423.
1147 U.S.C. § 303(n).
1247 C.F.R. § 95.426(a).
1312 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999); 47 C.F.R. § 1.80(b)(4).
1447 U.S.C. § 503(b)(2)(D).
1547 U.S.C. § 503(b).
1647 C.F.R. §§ 0.111, 0.311, 1.80.
17See 47 C.F.R. § 1.1914.