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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-FIELDWR-12-00003285
Joshua M. McMurchie NAL/Acct. No.: 201232920002
Prineville, Oregon FRN: 0021913389
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 17, 2012 Released: July 18, 2012
By the Resident Agent, Portland Resident Agent Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Joshua M. McMurchie apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended (Act), by
operating an unlicensed radio transmitter on the frequency 97.9 MHz in
Prineville, Oregon. We conclude that Mr. McMurchie is apparently
liable for a forfeiture in the amount of fifteen thousand dollars
2. On October 18, 2011, in response to a complaint from a local
broadcaster, an agent from the Enforcement Bureau's Portland Resident
Agent Office (Portland Office) used direction-finding techniques to
locate the source of radio frequency transmissions on the frequency
97.9 MHz to Mr. McMurchie's residence in Prineville, Oregon. The agent
determined that the signals on 97.9 MHz exceeded the limits for
operation under Part 15 of the Commission's rules (Rules), and
therefore required a license. Commission records showed no
authorization issued to Mr. McMurchie or to anyone for operation of a
broadcast station at or near this address. Accompanied by a police
officer from the Prineville Police Department, the agent inspected the
unlicensed radio station and issued a Notice of Unlicensed Operation
(NOUO), which was left with another resident at the house.
3. On May 3, 2012, in response to a subsequent complaint, an agent from
the Portland Office again used direction-finding techniques to locate
the source of radio frequency transmissions on the frequency 97.9 MHz
to Mr. McMurchie's residence. The agent determined that the signals
on 97.9 MHz exceeded the limits for operation under Part 15 of the
Rules, and therefore required a license. Commission records still
showed no authorization issued to Mr. McMurchie or to anyone for
operation of a broadcast station at or near this address. Accompanied
by a police officer of the Prineville Police Department, the Portland
agent inspected Mr. McMurchie's station and again found a broadcast
transmitter operating in a room in the residence. Mr. McMurchie
acknowledged his operation of the unlicensed radio station on
frequency 97.9 MHz to the Portland agent and offered to surrender the
transmitter. The agent advised Mr. McMurchie that he had repeatedly
violated Section 301 of the Act by operating an unlicensed radio
station on frequency 97.9 MHz in Prineville, Oregon.
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
A. Unlicensed Broadcast Operations
5. The evidence in this case is sufficient to establish that Mr.
McMurchie violated Section 301 of the Act. 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 granted under the provisions of the Act. On October 18,
2011, and May 3, 2012, an unlicensed radio station on the frequency
97.9 MHz was in operation at Mr. McMurchie's residence. On May 3,
2012, Mr. McMurchie admitted to the Portland agent that he owned and
operated the unlicensed radio station. A review of the Commission's
records revealed that Mr. McMurchie did not have a license to operate
a radio station at this location. Because Mr. McMurchie consciously
operated the station, and did so on more than one day, the apparent
violations of the Act were both willful and repeated. Based on the
evidence before us, we find that Mr. McMurchie apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
A. Proposed Forfeiture Amount
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. In doing so, we find that the violation warrants a
proposed forfeiture above the base amount. The fact that Mr. McMurchie
repeatedly operated an unlicensed station when he knew that such
actions were unlawful demonstrates a deliberate disregard for the Act
and the Commission's requirements. Thus, we find that an additional
upward adjustment of $5,000 in the forfeiture amount is warranted.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Mr.
McMurchie is apparently liable for a total forfeiture in the amount of
$15,000. We further caution Mr. McMurchie that future violations may
be subject to more severe enforcement action, including but not
limited to larger monetary forfeitures, criminal prosecution, and the
in rem seizure of his equipment.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Joshua M. McMurchie
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of
Section 301 of the Act.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Joshua M.
McMurchie SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Joshua M. McMurchie will also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
10. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Portland Resident Agent Office, P.O. Box 61469, Vancouver,
Washington 98666-1469, and include the NAL/Acct. No. referenced in the
caption. Joshua M. McMurchie also shall e-mail the written response
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail, to Joshua M. McMurchie at his address
FEDERAL COMMUNICATIONS COMMISSION
Portland Resident Agent Office
47 U.S.C. S: 301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, Section 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S: 15.239.
Joshua McMurchie, On-Scene Notice of Unlicensed Operation, issued October
18, 2011 (on file in EB-11-PO-0135). Although the station was in
operation, Mr. McMurchie was not at the residence at the time of the
inspection. The Portland Office also mailed Mr. McMurchie a formal NOUO,
via Certified Mail, Return Receipt Requested, informing him that his
operation of an unlicensed broadcast station was in violation of the Act
and that such operations must cease immediately. Joshua McMurchie, Notice
of Unlicensed Operation, issued October 27, 2011 (on file in
EB-11-PO-0135). The Portland Office subsequently received the Postal
Return Receipt (PS Form 3811) for this NOUO, which was signed by Mr.
McMurchie on October 29, 2011.
See supra note 2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
47 U.S.C. S: 301.
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Robert Brown, Memorandum Opinion and Order, DA 12-929, 2012 WL
2391969 (Enf. Bur. rel. June 22, 2012) (upholding a $15,000 forfeiture for
violations of Section 301); Lloyd Morris, Memorandum Opinion and Order, DA
12-930, 2012 WL 2391973 (Enf. Bur. rel. June 22, 2012) (same).
See 47 U.S.C. S:S: 401, 501, 503, 510.
47 U.S.C. S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1140
Federal Communications Commission DA 12-1140