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


In the Matter of                        )         
                              )         
Daniel Clephar                )                         File No.: 
EB-02-TP-650
2816 Pioneer Road, Apartment 4          )         NAL/Acct. No. 
200332700020
Orlando, Florida 32808                  )         FRN 0008369522
                                             

                  MEMORANDUM OPINION AND ORDER

Adopted:  August 29, 2005               Released:  September  14, 
2005

By the Acting Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), we 
               deny the petition for reconsideration filed by 
               Daniel Clephar (``Mr. Clephar'').  Mr. Clephar 
               seeks reconsideration of the Forfeiture Order1 in 
               which the Chief, Enforcement Bureau, found him 
               liable for a monetary forfeiture in the amount of 
               $10,000 for violation of Section 301 of the 
               Communications Act of 1934, as amended (``Act'').2  
               The noted violation involves Mr. Clephar's 
               operation of a radio station on the frequency 92.7 
               MHz without Commission authorization.  

II.  BACKGROUND

     2.   On December 6, 2002, two agents from the Commission's 
               Tampa, Florida Field Office ("Tampa Office") 
               working in the Orlando, Florida area detected an 
               FM radio station operating on the frequency 92.7 
               MHz.  The voice on the broadcast identified the 
               station as ``Radio Maximo.''  Using direction-
               finding equipment and techniques, the agents 
               determined that the station was broadcasting from 
               4816 Tam Drive, Orlando, Florida.  The agents took 
               field strength measurements of the station's 
               signal and determined that the station's operation 
               was such that it required a license.  The 
               Commission's records showed that no license had 
               been issued for this operation.  The agents traced 
               the location of the station's signal to Mr. 
               Clephar's residence.  The agents inspected the 
               station in the garage attached to the residence, 
               found that the transmitter was tuned to 92.7 MHz, 
               and identified Mr. Clephar's voice as the same one 
               they heard identify the station on the air as 
               ``Radio Maximo.''  

     3.   On April 14, 2003, the District Director of the Tampa 
               Office issued Mr. Clephar a Notice of Apparent 
               Liability for Forfeiture (``NAL'') in the amount 
               of $10,000 for apparent willful violation of 
               Section 301 of the Act.3  Mr. Clephar did not file 
               a response to the NAL.  The Chief of the 
               Enforcement Bureau issued a Forfeiture Order on 
               November 3, 2003, based on the record before the 
               Bureau, affirming the forfeiture proposed by the 
               NAL.  Mr. Clephar sought reconsideration of the 
               Forfeiture Order.  Therein, Mr. Clephar denied 
               that he was operating a radio station, claiming 
               that he was merely ``testing the equipment,'' and 
               stated that he does not have the ability to pay 
               the $10,000 forfeiture penalty assessed.  Mr. 
               Clephar's reconsideration request did not include 
               any financial information.

III.      DISCUSSION

     4.   Mr. Clephar's denial that he was operating a radio 
               station appears to be contradicted by his own 
               admission that he had the equipment and was only 
               testing it, and by the investigation conducted by 
               the agents in the Tampa Office.  There is no 
               ``testing'' exemption to Section 301 of the Act.  
               The agents heard Mr. Clephar's voice on the radio, 
               and observed equipment set up for a radio station 
               at Mr. Clephar's premises that was tuned to the 
               frequency which the agents' tracking devices 
               registered.  Thus, Mr. Clephar's statement does 
               not comport with the factual findings in the 
               record.  Moreover, because Mr. Clephar's statement 
               that he is unable to pay the forfeiture is 
               unsupported by any documentation,4 there is no 
               demonstrated inability to pay and thus no basis 
               for reduction of the forfeiture amount.

     IV.      ORDERING CLAUSES

     5.        Accordingly, IT IS ORDERED that, pursuant to 
               Section 405 of the Act and Section 1.106 of the 
               Rules, Mr. Clephar's petition for reconsideration 
               IS DENIED.

     6.        IT IS FURTHER ORDERED that, pursuant to Section 
               503(b) of the Act,5 and Sections 0.111, 0.311 and 
               1.80(f)(4) of the Commission's Rules,6 Mr. Clephar 
               IS LIABLE FOR A MONETARY FORFEITURE in the amount 
               of $10,000 for violating Section 301 of the Act. 

     7.        Payment of the forfeiture shall be made in the 
               manner provided for in Section 1.80 of the Rules7 
               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.8  Payment may be made 
               by credit card to the Commission's Credit and Debt 
               Management Center at (202) 418-1995 or by mailing 
               a check or similar instrument, payable to the 
               order of the 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 Operations Group, 445 12th Street, 
               S.W., Washington, D.C. 20554.9   







     8.   IT IS FURTHER ORDERED THAT this Order shall be sent by 
               regular mail and by certified mail, return receipt 
               requested, to Mr. Daniel Clephar, 2816 Pioneer 
               Road, Apartment 4, Orlando, Florida 32808.

                            FEDERAL COMMUNICATIONS COMMISSION




                            Kris Anne Monteith
                            Acting Chief, Enforcement Bureau
_________________________

1 See Daniel Clephar, 18 FCC Rcd 22914 (Enf. Bur. 2003).

2 47 U.S.C.  301.

3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332700020 (Enf. Bur., Tampa, Florida Office, released April 
14, 2003).

4 Paragraph 10 of the NAL stated that the Commission will not 
consider reducing or canceling a forfeiture in response to a 
claim of inability to pay unless the petitioner provides certain 
federal tax returns, financial statements or other reliable 
documentation accurately reflecting the petitioner's current 
financial status.

5 47 U.S.C.  503(b).

6 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

7 47 C.F.R.  1.80.

8 47 U.S.C.  504(a).

9 See 47 C.F.R.  1.1914.