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

In the Matter of                 )
                                 )
Gene A. Fricke                   )             EB-04-BS-085
                                 )
                                 )             NAL/Acct. No. 
Nashua, New Hampshire            ) 200632260001
                                 )
                                               FRN No. 0014204622


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                              Released: 1/26/2006

By the District Director, Boston Office, Northeast Region, 
Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 (``NAL''), we find that Gene A. Fricke (``Fricke''), the 
 owner/operator of a Citizens Band (``CB'') radio station in 
 Nashua, New Hampshire, apparently willfully violated Section 
 301 of the Communications Act of 1934, as amended (``Act''),1 
 by operating a CB radio station without Commission 
 authorization.  We conclude, pursuant to Section 503(b) of the 
 Act,2 that Fricke is apparently liable for a forfeiture in the 
 amount of ten thousand dollars ($10,000).  

II.  BACKGROUND

      2.  On July 6, 2005, in response to complaints regarding 
 Fricke's CB station, agents from the Boston Office monitored CB 
 radio operations in the Nashua, New Hampshire area.3  Using 
 direction-finding equipment, the agents determined that a 
 signal emitting a constant carrier on the frequency 27.195 MHz 
 was emanating from Fricke's residence.  The agents conducted an 
 inspection of Fricke's CB station and found three CB 
 transmitters that were set up and connected to outdoor antennas 
 on Fricke's residence.  By conducting on/off tests, the agents 
 confirmed that one of the transmitters was emitting a one-way 
 communication in the form of a constant carrier on the 
 frequency 27.195 MHz, a frequency that is not authorized for 
 use by CB stations.  The agents further determined that the 
 other two transmitters set up in Fricke's residence were 
 capable of operating in excess of the four-watt power 
 limitations.  One measured ten watts, the other measured eight 
 watts.

III.      DISCUSSION

      3.  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 

      4.   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   Individual licenses are not required to operate CB 
 radio stations.  Section 95.404 of the Rules provides a blanket 
 authorization to all CB users, provided that their stations are 
 operated in accordance with the Rules.6  Section 95.407 of the 
 Rules identifies the frequencies on which CB stations may 
 operate.7  Section 95.409 of the Rules prohibits CB operators 
 from making any internal modifications to a certified CB 
 transmitter and states that any such modification cancels the 
 certification and voids the authority to operate.8  Section 
 95.413(a)(4) prohibits one-way communications, except for 
 emergency communications, traveler assistance, brief tests 
 (radio checks), or voice paging.9  On July 6, 2005, using 
 modified CB equipment, Fricke operated his CB station on an 
 unauthorized frequency and transmitted a one-way communication 
 in the form of a constant carrier.  Because Fricke operated his 
 CB station inconsistent with the Rules, he was not authorized 
 to operate pursuant to Section 95.404 of the Rules.  
 Accordingly, based on the evidence before us, we find that 
 Fricke apparently willfully violated Section 301 of the Act by 
 operating a CB radio station without Commission authorization.

      5.  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 of the Rules, the base forfeiture 
 amount for operation without an instrument of authorization is 
 $10,000.10  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 violations, and with 
 respect to the violator, the degree of culpability, and history 
 of prior offenses, ability to pay, and other such matters as 
 justice may require.11  Applying the Forfeiture Policy 
 Statement, Section 1.80, and the statutory factors to the 
 instant case, we conclude that Fricke is apparently liable for 
 a ($10,000) forfeiture.

IV.  ORDERING CLAUSES

      6.  Accordingly, IT IS ORDERED that, pursuant to Section 
 503(b) of the Communications Act of 1934, as amended, and 
 Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's 
 Rules, Gene A. Fricke is hereby NOTIFIED of this APPARENT 
 LIABILITY FOR A FORFEITURE in the amount of ten thousand 
 dollars ($10,000) for violation of Section 301 of the Act by 
 operating his Citizens Band radio station without Commission 
 authorization.12

      7.  IT IS FURTHER ORDERED that, pursuant to Section 1.80 of 
 the Commission's Rules within thirty days of the release date 
 of this Notice of Apparent Liability for Forfeiture, Gene A. 
 Fricke SHALL PAY the full amount of the proposed forfeiture or 
 SHALL FILE a written statement seeking reduction or 
 cancellation of the proposed forfeiture.

      8.  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.

      9.  The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Northeast 
 Region, Boston Office, 1 Batterymarch Park, Quincy, MA, 02169 
 and must include the NAL/Acct. No. referenced in the caption.  

      10.      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.  

      11.      Requests for payment of the full amount of this 
 Notice of Apparent Liability for Forfeiture under an 
 installment plan should be sent to: Associate Managing 
 Director, Financial Operations, 445 12th Street, S.W., Room 
 1A625, Washington, D.C. 20554.13

      12.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to Gene A. 
 Fricke at his address of record. 

                              FEDERAL COMMUNICATIONS COMMISSION



                              Dennis Loria
                              District Director 
                              Boston Office
                              Northeast Region
                              Enforcement Bureau
_________________________

1 47 U.S.C.  301.
2 47 U.S.C.  503(b).  
3 Fricke's CB station has been the subject of prior FCC 
investigations.  On December 1, 2004, the Boston Office issued a 
Citation to Mr. Fricke for violating Section 302(b) of the Act 
and Section 2.803(a)(1) of the Rules by advertising for sale non-
certified CB transceivers.  On December 3, 2004, in response to 
complaints of continuous operation on CB Channel 19, the Boston 
Office issued a warning letter to Mr. Fricke for failure to limit 
the length of communications as required under Section 95.416 of 
the Rules, and imposed restrictions on the operation of any base 
or mobile transmitter from his property between the hours of 6 
a.m. and 10 a.m. and the hours of 2 p.m. and 10 p.m.  
4 Section 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).
5 47 U.S.C.  301.
6 47 C.F.R.  95.404.
7 47 C.F.R.  95.407.
8 47 C.F.R.  95.409.  Section 95.409 cites to Section 95.425 of 
the Rules, which states that ``[y]ou must not operate a CB 
transmitter which has been modified by anyone in any way, 
including modification to operate on unauthorized frequencies or 
with illegal power.''  See 47 C.F.R.  95.425(c).  Certified CB 
transmitters are capable of operating only on authorized CB 
frequencies.  That is, only CB transmitters that have been 
modified are capable of transmitting on unauthorized CB 
frequencies.
9 47 C.F.R.  95.413(a)(4).
1012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
1147 U.S.C.  503(b)(2)(D).
12 47 C.F.R.  0.111, 0.311, 0.314, and 1.80.
13See 47 C.F.R.  1.1914.