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


In the Matter of                  )
                                 )       File Number EB-04-OR-186
Danny R. McKinney                 )
Bigelow, Arkansas                 )      NAL/Acct. No.200532620003
                                 )
                                 )                 FRN 0012802120
                                 )


                      FORFEITURE ORDER

Adopted:               June             6,              2005                                                                            
Released:  June 8, 2005

By the Regional Director,  South Central Region, Enforcement 
Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of one thousand dollars 
($1,000) to Danny R. McKinney for willful violation of 
Section 301 of the Communications Act of 1934, as amended 
(``Act'').1  The noted violation involves Mr. McKinney's 
operation of a radio transmitter on 156.325 MHz (VHF marine 
channel 66) without Commission authorization.

II.   BACKGROUND 

     2.   On March 5, 2004, the Commission's New Orleans 
Office of the Enforcement Bureau (``New Orleans Office'') 
received a complaint about the misuse of VHF marine radios 
along the Arkansas River in Arkansas.  Agents from the New 
Orleans Office contacted several employees of the Arkansas 
Game and Fish Commission, who stated they had been trying 
unsuccessfully to stem the use of VHF marine radios by area 
hunters.  Despite their efforts to educate hunters that such 
use of VHF marine radios is illegal, the employees stated 
hunters continued to use marine frequencies for hunting 
activities.

     3.   On November 13, 2004, the opening day of deer 
hunting season, agents from the New Orleans Office used 
radio direction finding techniques to determine that the 
source of a signal on 156.325 MHz (VHF marine channel 66) 
was coming from a 1994 green GEO Tracker in Pulaski County, 
Arkansas.  The driver of the vehicle was observed talking 
into a radio microphone.  The agents determined that the 
driver of the vehicle was Mr. McKinney and that the vehicle 
was registered under his name.  A search of Commission 
records provided no authorization for Mr. McKinney to 
operate on this frequency.

     4.   On December 13, 2004, the New Orleans Office sent 
Mr. McKinney a warning letter for unlicensed operation of a 
transmitter on 156.325 MHz.  On December 23, 2004, the New 
Orleans Office received a reply to the warning letter from 
Mr. McKinney in which he admitted operating a radio 
transmitter on 156.325 MHz without a license to talk to a 
friend, the captain of the motor vessel, Sioux, and 
occasionally other people. He also stated that he had 
purchased the radio approximately two years ago.

     5.   On April 6, 2005, the New Orleans Office issued a 
Notice of Apparent Liability for Forfeiture to Mr. McKinney 
in the amount of ten thousand dollars ($10,000) for the 
apparent willful violation of Section 301 of the Act.2  Mr. 
McKinney filed a response to the NAL on May 6, 2005, 
requesting cancellation or reduction of the forfeiture based 
on inability to pay.       

III.        DISCUSSION

     6.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,3 
Section 1.80 of the Commission's Rules (``Rules''),4 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) (``Forfeiture Policy Statement'').  In 
examining Mr. McKinney's response, 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.5

     7.   Section 301 of the Act states 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.   The frequency 156.325 MHz has been assigned to 
VHF Marine Channel 66 for maritime services.6  Section 80.13 
of the Rules states that stations in the maritime service 
must be licensed either individually or by fleet.7  Ship 
stations may also be licensed by rule under certain 
circumstances without an individual license.8  However, ship 
stations are defined as those radio stations located on 
vessels not permanently moored.9  On November 13, 2004, 
agents from the New Orleans Office determined that Mr. 
McKinney operated a radio transmitter on 156.325 MHz, VHF 
marine channel 66, from his land-based vehicle without a 
license.  Mr. McKinney admitted that he operated a radio 
transmitter without Commission authorization.  Thus, based 
on the evidence, we find that Mr. McKinney willfully10 
violated Section 301 of the Act by operating a radio 
transmitter without the required authorization from the 
Commission on November 13, 2004.

     8.   In his response to the NAL, Mr. McKinney asserts 
that a $10,000 forfeiture would produce a financial hardship 
and requests that the forfeiture be cancelled or 
significantly reduced.  The Commission has determined that, 
in general, an entity's gross revenues are the best 
indicator of its ability to pay a forfeiture.11  After 
reviewing Mr. McKinney's tax returns, we conclude that a 
reduction of the forfeiture to $1,000 would be appropriate.  

     9.   Mr. McKinney also requested a reduction or 
cancellation of the forfeiture, because he removed the radio 
from his vehicle and is willing to turn over the radio to 
the Commission.  Mr. McKinney's remedial actions to cease 
operation of the unlicensed transmissions, however, are 
expected and do not warrant a cancellation or reduction in 
the forfeiture amount.12  Finally, Mr. McKinney asked for a 
reduction in the forfeiture, because his use of the radio 
was limited and he did not intend to cause interference to 
other users.  As stated above, a violator need not intend to 
violate the Act or the Rules or to cause interference for a 
violation to be willful.  Accordingly, we find no basis to 
reduce the forfeiture below $1,000.

     10.  We have examined Mr. McKinney's response to the 
NAL pursuant to the statutory factors above, and in 
conjunction with the Forfeiture Policy Statement.  As a 
result of our review, we conclude that Mr. McKinney 
willfully violated Section 301 of the Act.  Although 
cancellation of the proposed monetary forfeiture is not 
warranted, reduction of the forfeiture amount to $1,000 is 
appropriate based on Mr. McKinney's demonstrated inability 
to pay.

IV.   ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED that, pursuant to 
Section 503(b) of the Communications Act of 1934, as 
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the 
Commission's Rules,13 Danny R. McKinney IS LIABLE FOR A 
MONETARY FORFEITURE in the amount of one thousand dollars 
($1,000) for willfully violating Section 301 of the Act. 

     12.  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.14  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 full payment under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Group, 445 12th Street, S.W., Washington, D.C. 
20554.15 

     13.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Danny R. McKinney at his address of 
record.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              Dennis P. Carlton
                              Regional Director, South 
                         Central Region
                              Enforcement Bureau
_________________________

147 U.S.C.  301.

2Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532620003 (Enf. Bur., New Orleans Office, April 6, 2005) 
(``NAL'').

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

447 C.F.R.  1.80.

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

6See 47 C.F.R.  80.373(f).

747 C.F.R.  80.13.

847 C.F.R. 80.13(c).

9See 47 C.F.R.  80.5, 80.13.

10Section  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,'  ...   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).   

11See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 
2089  (1992)  (forfeiture  not deemed  excessive  where  it 
represented  approximately 2.02  percent of  the violator's 
gross  revenues); Local  Long  Distance, Inc.,  16 FCC  Rcd 
24385  (2000) (forfeiture  not  deemed  excessive where  it 
represented  approximately 7.9  percent  of the  violator's 
gross revenues);  Hoosier Broadcasting Corporation,  15 FCC 
Rcd 8640  (2002) (forfeiture not deemed  excessive where it 
represented  approximately 7.6  percent  of the  violator's 
gross revenues).

12See  AT&T  Wireless Services,  Inc.,  17  FCC Rcd  21861, 
21864-75 (2002);  Sonderling Broadcasting Corp., 69  FCC 2d 
289, 291  (1978); Odino  Joseph, 18  FCC Rcd  16522, 16524, 
para.  8 (Enf.  Bur.  2003);  South Central  Communications 
Corp., 18  FCC Rcd 700,  702-03, para. 9 (Enf.  Bur. 2003); 
Northeast Utilities, 17 FCC Rcd  4115, 4117, para. 13 (Enf. 
Bur. 2002).  

1347 C.F.R.  0.111, 0.311, 1.80(f)(4).

1447 U.S.C.  504(a).

15See 47 C.F.R.  1.1914.