Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************




                            Before the
                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:

I.  INTRODUCTION

    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). 

II.  BACKGROUND

    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.

III.  DISCUSSION

    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 
authorization.

    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 
station.  

    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 
forfeiture.

     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 
bycheck or money order may be mailed to Federal 
Communications Commission, P.O. Box358340,Pittsburgh, PA 
15251-8340. Payment by overnight mail may be sent toMellon 
Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, 
PA 15251. Payment by wire transfer may be made to ABA 
Number043000261, receiving bankMellon Bank, and account 
number911-6106.  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 
submitted.

     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. 


                              FEDERAL COMMUNICATIONS 
COMMISSION





                              Ralph M. Barlow
                              District Director
                              Tampa Office, South Central 
Region
                              Enforcement Bureau

_________________________

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 
(1991).

547 U.S.C.  301.

647 C.F.R.  95.404.

7See id.

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.