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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-
Joseph S. McCreary ) NAL/Acct. No.
Pensacola, Florida ) FRN
MEMORANDUM OPINION AND ORDER
Adopted: December 3, 2002 Released: December
By the Chief, Enforcement Bureau:
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.
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.
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
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
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
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
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,
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
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.