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


In the Matter of                        )         File No.: EB-
01-TP-399      
                              )         
Joseph S. McCreary                 )         NAL/Acct.        No. 
200232700006
                              )    
Pensacola, Florida                                )         FRN 
0006-9319-84   
                              

                  MEMORANDUM OPINION AND ORDER

     Adopted:  December 3, 2002              Released:   December 
5, 2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.  In  this Memorandum  Opinion and  Order (``Order''),  we 
deny the petition for reconsideration  filed on August 21,  2002, 
by  Joseph   S.   McCreary    (``McCreary'').    McCreary   seeks 
reconsideration of  the Forfeiture  Order,1 in  which the  Chief, 
Enforcement Bureau (``Bureau''), found him liable for a  monetary 
forfeiture in  the  amount of  $5,000  for willful  violation  of 
Section 95.411  of  the Commission's  Rules  (``Rules'').2    The 
noted violation  involves McCreary's  attachment  and use  of  an 
external radio frequency power amplifier as part of his  Citizens 
Band (``CB'') radio station.  For the reasons discussed below, we 
affirm the monetary forfeiture in the amount of $5,000. 

                         II.  BACKGROUND

     2.  On March 11, 2002,  agents from the Commission's  Tampa, 
Florida,  Office  (``Tampa   Office'')  traveled  to   Pensacola, 
Florida, to investigate complaints  indicating that McCreary  was 
operating a CB radio station  with a 1,000 watt linear  amplifier 
and was  causing interference  to home  electronic  entertainment 
devices.  On the  same date, the  agents inspected McCreary's  CB 
station and observed that a linear amplifier was connected to the 
station's CB transceiver.  McCreary  admitted to the agents  that 
he had  been operating  his CB  station with  a linear  amplifier 
attached and with a power of at least 20 watts.
     3.  On the basis of the foregoing observations, the District 
Director  of  the  Tampa  Office  issued  a  Notice  of  Apparent 
Liability for Forfeiture (``NAL'')3 on May 7, 2002, in the amount 
of $5,000 to McCreary.  McCreary did not respond to the NAL.   On 
August 1, 2002, the Enforcement Bureau issued a Forfeiture  Order 
to McCreary, affirming the forfeiture  proposed by the NAL.    In 
his request for reconsideration of the Forfeiture Order, McCreary 
asserted that: his linear amplifier  had been disabled, he  could 
receive but not make radio transmissions, and his station's power 
was four watts.  Additionally, McCreary stated that he would like 
to resolve  the  monetary  forfeiture  and  offered  to  let  the 
Commission take  possession of  his radio  apparatus in  lieu  of 
payment of the forfeiture.


                        III.  DISCUSSION

     4.  The Enforcement Bureau assessed the forfeiture amount in 
this case in  accordance with Section  503 of the  Communications 
Act of 1934, as amended  (``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) (``Policy  Statement'').  Section 503(b)  of the  Act6 
requires that, in examining  McCreary's petition, 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.7

     5.  Section 95.411 of the Rules prohibits the attachment  of 
radio frequency power amplifiers, including linear amplifiers, to 
CB transmitters.  FCC agents observed that a linear amplifier was 
attached to McCreary's CB transceiver.  Furthermore, McCreary has 
admitted that he operated his CB station with a linear  amplifier 
attached.  We conclude that  McCreary willfully violated  Section 
95.411 of the Rules.

     6.  McCreary  claims  he  has taken  steps  to  correct  his 
violation of Section 95.411.  However, complaints received during 
October  2002  indicate  that  McCreary  may  still  be   causing 
interference to home  electronic entertainment  devices.  In  any 
event,  even  if  McCreary  has  corrected  the  violations,   no 
mitigation is  warranted.  As  the Commission  stated in  Seawest 
Yacht Brokers, 9 FCC Rcd  6099, 6099 (1994), ``corrective  action 
taken to come into compliance with Commission rules or policy  is 
expected, and does not nullify or mitigate any prior  forfeitures 
or violations.''8

     7.  McCreary suggests  the forfeiture could  be resolved  by 
the surrender of his radio apparatus.  We disagree.    McCreary's 
surrender of  his  radio  apparatus after  being  cited  for  the 
violation would simply be an additional corrective measure, which 
cannot be used to mitigate the forfeiture.

     8.  We have examined McCreary's petition for reconsideration 
pursuant to  the  statutory  factors  set  forth  above,  and  in 
conjunction with the Policy  Statement as well.   As a result  of 
our reconsideration,  we conclude  that  McCreary has  failed  to 
provide sufficient justification for any change in the Forfeiture 
Order.

                      IV.  ORDERING CLAUSES

     9.  Accordingly, IT IS ORDERED that, pursuant to Section 405 
of the  Act,9  and  Section  1.106  of  the  Rules,10  McCreary's 
petition for reconsideration  of the August  1, 2002,  Forfeiture 
Order IS  DENIED and  the issuance  of the  $5,000 forfeiture  IS 
AFFIRMED.

     10.  Payment of the forfeiture  shall be made in the  manner 
provided for in Section 1.80 of  the Rules within 30 days of  the 
release of this Order.  If the forfeiture is not paid within  the 
period specified, the case may  be referred to the Department  of 
Justice for collection pursuant to  Section 504(a) of the  Act.11  
Payment shall 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 
NAL/Acct. No. 200232700006, and  FRN 0006-9319-84.  Requests  for 
full payment under an installment plan should be sent to:  Chief, 
Revenue and Receivables Operations Group, 445 12th Street,  S.W., 
Washington, D.C. 20554.12
     
     11.   IT IS FURTHER ORDERED THAT this Order shall be sent by 
regular mail and by certified mail, return receipt requested,  to 
Joseph S.  McCreary,  3305 Bayou  Boulevard,  Pensacola,  Florida 
32503. 

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

     1 17 FCC Rcd 14554 (Enf. Bureau 2002)

     2  47 C.F.R.  95.411.

     3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232700006 (Enf.  Bur., Tampa  Field  Office, released  May  7, 
2002).

     4  47 U.S.C.  503.

     5 47 C.F.R.  1.80.

     6647 U.S.C.  503(b).

     7747 U.S.C.  503(b)(2)(D).

     8 See also  Radio Station  KGVL, Inc.,  42 FCC  2d 258,  259 
(1973); and  Executive  Broadcasting Corp.,  3  FCC 2d  699,  700 
(1966).

     9 47 U.S.C.  405.

     10 47 C.F.R.  1.106.

     11 47 U.S.C.  504(a).

     12 See 47 C.F.R.  1.1914.