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

In the Matter of                )
                                )
Mr. Jerry Smith                 )    File No. EB-00-PA-414
                                )
125 Commonwealth Ave.           )    NAL/Acct. No. 200132400001
Claymont, Delaware            )         

                                     
                  MEMORANDUM OPINION AND ORDER 

Adopted:  June 19, 2001                      Released:  June  21, 
2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In this Memorandum  Opinion and  Order (``Order''),  we 
  grant   in  part   and   deny   in  part   the   Petition   for 
  Reconsideration (``Petition'') filed  on May 21, 2001 by  Jerry 
  Smith (``Mr.  Smith'').  Mr. Smith  seeks reconsideration of  a 
  Forfeiture  Order,1 in  which  the Chief,  Enforcement  Bureau, 
  issued  a  monetary  forfeiture  in  the  amount  of   thirteen 
  thousand  five  hundred  dollars  ($13,500)  for  willful   and 
  repeated  violations  of  Sections  95.409(a),  95.410(a)   and 
  95.411(a)(1)  of  the  Commission's  Rules  (``Rules'').2   The 
  noted violations  involve Mr. Smith's  operation of a  Citizens 
  Band   (``CB'')   Radio  Station   with   a   non-type-accepted 
  transmitter, with a transmitter output power greater than  four 
  watts carrier power in  the AM (A3) mode, and with an  external 
  RF  power  amplifier.  For  the  reasons  discussed  below,  we 
  reduce  the  forfeiture   amount  to  three  thousand   dollars 
  ($3,000).

                           II.  BACKGROUND

2.        In response to a  complaint concerning interference  to 
  electronic  equipment,  the  Philadelphia,  Pennsylvania  Field 
  Office  (``Field  Office'')  inspected  the  CB  Radio  Station 
  operated   by  Mr.   Smith.    The  inspection   revealed   the 
  aforementioned  violations.  On  January  12, 2000,  the  Field 
  Office  issued  a   Notice  of  Violation  (``NOV'')  for   the 
  violations.  On January  21, 2000, the Field Office received  a 
  response to  the NOV from  Mr. Smith's wife,  Lisa Marie  Smith 
  (``Mrs. Smith'').  The  response indicated that the  violations 
  had  been corrected.   On  April  13, 2000,  the  Field  Office 
  received notice from the Commission's Gettysburg,  Pennsylvania 
  office  that it  received a  referral from  Senator William  V. 
  Roth concerning interference to home electronics caused by  Mr. 
  Smith's operation of the CB station.  

3.        On April  28,  2000,  the  Chief,  Enforcement  Bureau, 
  responded to Senator Roth indicating that the Field Office  had 
  performed  an inspection  of Mr.  Smith's CB  station, noted  a 
  number of  violations, and issued an  NOV.  The letter  further 
  noted that  Field Office  had received  a response  to the  NOV 
  indicating that  the violations had  been corrected.   Finally, 
  the letter stated that any further problems should be  reported 
  to   the  Bureau's   Technical  and   Public  Safety   Division 
  (``TPSD'').  On  October 3, 2000, the  Field Office received  a 
  referral from TPSD concerning interference to home  electronics 
  apparently due  to Mr. Smith's operation  of a CB station.   On 
  October 15, 2000, an agent from the Field Office monitored  Mr. 
  Smith's  CB station  from  a location  within  a block  of  the 
  station.  On  November 1,  2000, agents from  the Field  Office 
  inspected Mr.  Smith's CB station  and the inspection  revealed 
  the aforementioned violations.   On January 8, 2001, the  Field 
  Office issued a  Notice of Apparent Liability for  Forfeiture,3 
  for $13,500  to Mr. Smith for  the noted violations.  On  April 
  20, 2001,  the Chief, Enforcement  Bureau, issued a  Forfeiture 
  Order  which affirmed  the  $13,500 forfeiture  issued  to  Mr. 
  Smith in the NAL.   The Forfeiture Order stated that Mr.  Smith 
  had not filed a response, and we affirmed the forfeiture  based 
  on the information before us.  

4.        In his Petition, Mr. Smith does not dispute our finding 
  that  he  operated a  CB  radio  station in  violation  of  the 
  Commission's Rules.  He disagrees, however, with the  statement 
  in the  Forfeiture Order that  he did not  respond to the  NAL.  
  Mr.  Smith claims  that Mrs.  Smith  prepared and  forwarded  a 
  response  on his  behalf to  the Commission's  headquarters  in 
  Washington, DC.  According to the Petition, Mrs. Smith did  not 
  send the response by certified mail, nor did she retain a  copy 
  of her letter.  Nonetheless, argues Mr. Smith, the  Enforcement 
  Bureau did receive the response because the Enforcement  Bureau 
  subsequently requested  that he furnish additional  information 
  electronically.

5.        Mr. Smith  asserts, however,  that  the basis  for  his 
  Petition  is  the Smiths'  ``desperate''  financial  situation, 
  which compels  them to  seek remission of  the forfeiture.   In 
  support  of  his argument  of  financial  hardship,  Mr.  Smith 
  includes various financial documents.

                         III.      DISCUSSION

6.        As the NAL explicitly states, the forfeiture amount  in 
  this case  was assessed  in accordance with  Section 503(b)  of 
  the  Act,4 Section  1.80 of  the Rules,5  and The  Commission's 
  Forfeiture Policy  Statement and Amendment  of Section 1.80  of 
  the Rules to Incorporate the Forfeiture Guidelines, 12 FCC  Rcd 
  17087 (1997),  recon. denied, 15 FCC  Rcd 303 (1999).   Section 
  503(b)  of the  Act  requires  that the  Commission  take  into 
  account 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.6 

7.        Mr. Smith's arguments  do not  justify cancellation  of 
  the  entire  forfeiture  amount  on  the  basis  of   financial 
  hardship.  We conclude however, that reduction of the  proposed 
  forfeiture amount to $3,000 is appropriate.  After  considering 
  the  financial information  submitted, we  find that  requiring 
  Mr. Smith to pay a $13,500 forfeiture would impose a  financial 
  hardship  and, consequently,  we  lower the  proposed  monetary 
  forfeiture to $3,000.   With respect to Mr. Smith's  contention 
  that Mrs. Smith  submitted a response to the Forfeiture  Order, 
  the Commission  has no record  of such a  filing and Mr.  Smith 
  presents  no evidence  that the  Commission ever  received  the 
  filing.  Similarly,  we are unable  to locate any  record of  a 
  request for  additional information, nor  would such a  request 
  be routinely made.  Nevertheless, we have addressed herein  the 
  arguments Mr. Smith raised in his Petition.

                        IV.  ORDERING CLAUSES

8.        Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  1.106 of  the Rules,  the Petition for  Reconsideration of  the 
  Forfeiture Order in  this proceeding is hereby GRANTED IN  PART 
  AND DENIED IN PART.

9.         IT IS FURTHER ORDERED that, pursuant to Section 503(b) 
  of  the Act7  and  Section 1.80(f)  of  the Rules,8  Mr.  Jerry 
  Smith, shall, within 30 days of the release of this  Memorandum 
  Opinion  and Order,  pay the  amount  of $3,000  for  violating 
  Sections 95.409(a),  95.410(a) and 95.411(a)(1)  of the  Rules.  
  If the forfeiture is not paid within the specified period,  the 
  case  may  be  referred  to  the  Department  of  Justice   for 
  collection pursuant  to Section  504(a) of  the Act.9   Payment 
  may be made by  mailing a check or similar instrument,  payable 
  to the order  of the Federal Communications Commission, to  the 
  Federal  Communications Commission,  P.O. Box  73482,  Chicago, 
  Illinois  60673-7482.  The  payment should  note the  NAL/Acct. 
  No.  200132400001.    Requests  for  full   payment  under   an 
  installment plan  should be sent  to:  Revenue and  Receivables 
  Operations  Group,  445 12th  Street,  S.W.,  Washington,  D.C. 
  20554. 10

10.       IT IS FURTHER ORDERED that,  a copy of this  Memorandum 
  Opinion  and Order  shall be  sent  by certified  mail,  return 
  receipt requested,  to counsel  for Mr. Jerry  Smith, Lewis  H. 
  Goldman, Esq., 45 Dudley Court, Bethesda, Maryland, 20814,  and 
  to  Mr.  Jerry   Smith,  125  Commonwealth  Avenue,   Claymont, 
  Delaware, 19703.  

                              FEDERAL COMMUNICATIONS COMMISSION  



                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

  1   Forfeiture  Order, NAL/Acct. No.  200132400001 (Enf.  Bur., 
released April 20, 2001) (``Forfeiture Order'').

  2   47 C.F.R.  95.409(a), 95.410(a) and 95.411(a)(1).

  3   Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
200132400001 (Enf. Bur., Philadelphia Office, released January 8, 
2001) (``NAL'').

  4  47 U.S.C.  503(b)(2)(D).

  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.  1.80(f) 

  9 47 U.S.C.  504(a).

  10 See 47 C.F.R.  1.1914.