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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-03-TP-191
Tommie Salter ) NAL/Acct. No.
Jacksonville, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: February 16, 2005 Released: February
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
grant in part and deny in part the petition for
reconsideration filed by Tommie Salter of the
Forfeiture Order issued December 27, 20041 and reduce
the assessed forfeiture amount to five hundred fifty
dollars ($550), in light of evidence Mr. Salter has
submitted regarding his inability to pay. The
Forfeiture Order imposed a monetary forfeiture in the
amount of $10,000 to Mr. Salter for the willful
violation of Section 301 of the Communications Act of
1934, as amended (``Act'').2 The noted violation
involved Mr. Salter's operation of a citizens band
(``CB'') radio station without Commission
2. Agents from the Commission's Tampa Office of the
Enforcement Bureau (``Tampa Office'') determined that
Mr. Salter operated a CB transmitter that was not FCC
certificated for CB use.3 They also observed Mr.
Salter, who had been informed by an Official Notice
not to operate between 6 a.m. and 11:59 p.m.,
operating his CB radio station during restricted
hours. Because Mr. Salter operated his CB station in
a manner inconsistent with the Commission's Rules
(``Rules''), he was not authorized to operate his CB
station.4 On October 18, 2004, the Tampa Office
issued a Notice of Apparent Liability for Forfeiture
(``NAL'') to Mr. Salter in the amount of ten thousand
dollars ($10,000) for the apparent willful violation
of Section 301 of the Act.5 On November 18, 2004,
Mr.Salter filed a response to the NAL essentially
arguing that his violations were not willful, because
he did not intend to violate the Rules.
3. Finding that for a violation to be willful, it must be
committed consciously and deliberately, irrespective
of any intent to violate the Rules,6 the Enforcement
Bureau issued a Forfeiture Order upholding the NAL on
December 27, 2004. The Bureau received Mr. Salter's
petition for reconsideration on January 14, 2005. In
his petition, Mr. Salter does not contest the
violations found in the Forfeiture Order. However, he
seeks cancellation or reduction of the assessed
forfeiture based on his inability to pay. Mr. Salter,
who asserts he is retired and living on Social
Security and fixed retirement benefits, provided
copies of his tax returns to support his claim.
4. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act, 7 Section 1.80
of the Rules,8 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.9 In examining Mr.
Salter's petition, 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 any
other such matters as justice may require.10
5. 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. Salter's claim and tax
returns, we believe that payment of a $10,000 forfeiture would
pose a financial hardship. Therefore, we find that a reduction
of the forfeiture to $550 is warranted based on his inability to
pay.12 Pursuant to Sections 4(i) and 308(b) of the Act,13 we
also direct Mr. Salter to submit a statement to the Enforcement
Bureau that he has either ceased operating his CB station or come
into compliance with all Rules, including restricted hours
imposed by Official Notices. This statement, made under penalty
of perjury, must be signed by Mr. Salter and submitted no more
than thirty days after the release of this Order.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended,14 and Section
1.106 of the Commission's Rules,15 Tommie Salter's petition for
reconsideration of the December 27, 2004 Forfeiture Order IS
hereby GRANTED to the extent noted herein and DENIED in all other
7. Payment of the $550 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.16 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 by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank ``Bank One,'' and
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
8. IT IS FURTHER ORDERED that, pursuant to Sections 307(e)
and 308(b) of the Communications Act of 1934, as amended,18
Tommie Salter must submit the statement described in paragraph 5
above, no more than thirty (30) days following the release of
this Order, to the Federal Communications Commission, Enforcement
Bureau, South Central Region, 3575 Koger Boulevard, Suite 320,
Duluth, Georgia 30096-4958, Attention: Regional Counsel.
9. IT IS FURTHER ORDERED that this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Tommie Salter at his address of record and Donald
E. Pinaud, Jr., 4069 Atlantic Boulevard, Jacksonville, Florida
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1Tommie Salter, Forfeiture Order, DA 04-4012 (Enf. Bur. December
27, 2004) (``Forfeiture Order'').
247 U.S.C. § 301.
3See 47 C.F.R. § 95.409.
4See 47 C.F.R. § 95.404.
5Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532700002 (Enf. Bur., Tampa Office, October 18, 2004)
6See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
747 U.S.C. § 503(b).
847 C.F.R. § 1.80.
912 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).
1047 U.S.C. § 503(b)(2)(D).
11PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
12See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (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). In this case, the reduced forfeiture
represents a smaller percentage than those issued in the Local
Long Distance, Inc. and Hoosier Broadcasting Corp., cases, and a
higher percentage compared to the forfeiture issued in PJB
Communications of Virginia, Inc.
1347 U.S.C. §§ 154(i), 308(b).
1447 U.S.C. § 405.
1547 C.F.R. § 1.106.
1647 U.S.C. § 504(a).
17See 47 C.F.R. § 1.1914.
1847 U.S.C. §§ 307(e), 308(b).