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Federal Communications Commission DA 12-340
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Michael W. Perry
Cross City, FL
File No.: EB-11-TP-0016
NAL/Acct. No.: 201232700003
Adopted: March 6, 2012 Released: March 6, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of four
hundred fifty dollars ($450) to Michael W. Perry for willful violation of Section 301 of the
Communications Act of 1934, as amended (Act),1 and Sections 95.409 and 95.411 of the Commission’s
rules (Rules).2 The noted violations involved Mr. Perry’s operation of a radio transmitter without the
requisite Commission authorization and his failure to operate a Citizens Band (CB) station in conformity
with the Rules. The monetary forfeiture imposed reflects consideration of Mr. Perry’s inability to pay
2. On November 1, 2011, the Enforcement Bureau’s Tampa Office (Tampa Office) issued a
Notice of Apparent Liability for Forfeiture and Order (NAL) 3 to Mr. Perry for operation of a radio
transmitter without the requisite authorization. As discussed in detail in the NAL, agents from the Tampa
Office determined that Mr. Perry operated a non-certified CB transmitter and two linear amplifiers on CB
channel 28 (on frequency 27.2850 MHz) on March 31, 2011.4 In view of the record evidence, the NAL
proposed a $10,000 forfeiture against Mr. Perry for violation of Section 301 of the Act and Sections
95.409 and 95.411 of the Rules.5 Mr. Perry submitted a response to the NAL, denying that he operated the
non-certified CB transmitter and amplifiers, and requesting cancellation or reduction of the forfeiture
based on his inability to pay.6
1 47 U.S.C. § 301.
2 47 C.F.R. §§ 95.409, 95.411.
3 Michael W. Perry, Notice of Apparent Liability for Forfeiture and Order, 26 FCC Rcd 15440 (Enf. Bur., Tampa
Office 2011) (NAL).
4 See id. A comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated
herein by reference.
5 See id. at 15442, para. 6.
6 Letter from Michael W. Perry to Federal Communications Commission (received by the Tampa Office Dec. 2,
2011) (on file in EB-11-TP-0016) (NAL Response).
Federal Communications Commission DA 12-340
3. The proposed 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 Forfeiture Policy Statement.9 In examining Mr.
Perry’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.10
As discussed below, after full consideration of Mr. Perry’s response in light of these statutory factors, we
affirm our findings in the NAL that Mr. Perry violated Section 301 of the Act and Sections 95.409 and
95.411 of the Rules, but reduce the $10,000 forfeiture proposed to $450 based solely on his documented
inability to pay.
4. First, we find that Mr. Perry violated Section 95.409 of the CB Rules. Specifically,
Section 95.409(a) states that CB operators must use FCC certificated CB transmitters at their CB stations
and that the use of a transmitter that is not FCC certificated voids the authority to operate the station.11 As
set forth in the NAL, agents from the Tampa Office determined, using direction-finding techniques, that Mr.
Perry’s residence was the source of signals on CB channel 28 on March 31, 2011.12 The agents inspected
Mr. Perry’s CB station, which consisted of a non-certificated CB transmitter and three linear amplifiers.
The agents observed that the transmitter and two of the linear amplifiers were not connected to each other,
but were warm to the touch, indicating that they had been recently operated. During the inspection, Mr.
Perry admitted that he operated this CB station that evening. In his NAL Response, however, Mr. Perry
disputes some of our factual findings, asserting that the non-certificated CB transmitter and linear amplifiers
were warm to the touch during the inspection, not because he was operating it, but because he “turn[ed] it on
to dry because it is stored in an addition that has no heat, air or insulation.”13 In addition, Mr. Perry asserts
he had the equipment because he was studying for his amateur radio license and that “[a]t no time did I tell
the inspectors that I operated that equipment.”14
5. Even if we accept as true (which we do not) that Mr. Perry never admitted to the agents that
he operated the unauthorized equipment, it remains undisputed that transmissions on CB channel 28
emanated from Mr. Perry’s residence on March 31, 2011, and that he was not using an FCC certificated CB
transmitter, as Section 95.409 requires. When the agents requested to inspect the CB station in the
residence, Mr. Perry first took them to a CB station in his kitchen. This station consisted of a certificated
CB transmitter and a linear amplifier, both of which were cold to the touch and neither of which was
connected to each other or an external antenna. The agents also attempted to connect the microphone,
which Mr. Perry stated was used at his station, but found that the four-pin connector did not fit into the six-
pin microphone receptacle in the transmitter. The agents reiterated their request to inspect his CB station,
and Mr. Perry took them to the non-certificated CB transmitter and three linear amplifiers. The non-
certificated CB transmitter was connected to an external antenna, but was not connected to the three linear
amplifiers next to it. Although Mr. Perry now denies operating this equipment and claims the equipment
was only turned on to dry, we find his assertions implausible. Because the non-certificated CB transmitter
was the only CB transmitter in Mr. Perry’s residence which was connected to an external antenna and was
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
10 47 U.S.C. § 503(b)(2)(E).
11 47 C.F.R. § 95.409(a).
12 See NAL, 26 FCC Rcd at 15440, para. 2.
13 NAL Response at 1.
Federal Communications Commission DA 12-340
warm to the touch, and because a CB transmitter was operated from Mr. Perry’s residence, we conclude that
Mr. Perry operated the non-certificated CB transmitter on March 31, 2011, in violation of Section 95.409.
6. Second, we also find that Mr. Perry violated Section 95.411 of the CB Rules.
Specifically, Section 95.411(a) of the Rules states that CB operators may not attach external radio
frequency (RF) power amplifiers (sometimes called “linears” or “linear amplifiers”) to certificated CB
transmitters in any way.15 Further, Section 95.411(b) of the Rules states that there are no exceptions to
this rule and that use of a power amplifier voids the authority to operate the station.16 Although Mr. Perry
now denies operating the two warm amplifiers located next to the non-certificated CB transmitter, there is
no escaping the fact that Mr. Perry nonetheless was in possession, in his home, of the two amplifiers
which, under the Commission’s rules, is presumed to be use of unauthorized equipment when combined
with other evidence of operation, as we have here. As Section 95.411(c) states: the “FCC will presume
you have used a linear or other external RF power amplifier if – (1) It is in your possession or on your
premises; and (2) There is other evidence that you have operated your CB station with more power than
allowed by CB Rule 10, § 95.410.”17 Because two warm-to-the-touch linear amplifiers were located in
Mr. Perry’s residence next to a non-certificated CB transmitter that had been operated that evening, we
presume he used the two amplifiers at his CB station on March 31, 2011, and, therefore, was in violation
of Section 95.411.
7. Furthermore, because Mr. Perry was operating his CB station in a manner inconsistent
with the CB Rules, as discussed above, he was required to have Commission authorization to continue
operating. Mr. Perry, however, did not have a Commission license. 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.18 Section
95.404 of the Rules states that CB operators are not required to have individual licenses because they are
authorized by this rule to operate a CB station, provided, however, that they operate the station in
accordance with Subpart D of Part 95 of the Rules (i.e., the CB Rules).19 As such, operation of CB
stations in a manner that is inconsistent with the CB Rules requires a license pursuant to Section 301 of
the Act.20 Because Mr. Perry was operating his CB station in a manner inconsistent with the CB Rules
and did not otherwise possess a Commission license (a fact that he does not dispute), we find that Mr.
Perry also willfully violated Section 301 of the Act.
8. With regard to an individual or entity’s inability to pay claim, the Commission has
determined that, in general, gross revenues are the best indicator of an ability to pay a forfeiture.21 Based
on the financial documents provided by Mr. Perry, we find sufficient basis to reduce the forfeiture to
$450.22 However, we caution Mr. Perry that a party’s inability to pay is only one factor in our forfeiture
15 47 C.F.R. § 95.411(a).
16 47 C.F.R. § 95.411(b).
17 47 C.F.R. § 95.411(c).
18 47 U.S.C. § 301.
19 47 C.F.R. § 95.404 (emphasis added).
20 47 U.S.C. § 301.
21 See PJB Communications of Virginia, Inc., Forfeiture Order, 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., Forfeiture Order, 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, Forfeiture Order,
15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the
violator’s gross revenues).
22 This forfeiture amount falls within the percentage range that the Commission has previously found acceptable.
See supra note 21.
Federal Communications Commission DA 12-340
calculation analysis, and not dispositive.23 We have previously rejected inability to pay claims in cases of
repeated or otherwise egregious violations.24 Therefore, future violations of this kind may result in
significantly higher forfeitures that may not be reduced due to Mr. Perry’s financial circumstances.
IV. ORDERING CLAUSES
9. 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(f)(4) of the Commission’s
rules, Michael W. Perry IS LIABLE FOR A MONETARY FORFEITURE in the amount of four
hundred fifty dollars ($450) for violations of Section 301 of the Act and Sections 95.409 and 95.411 of
the Commission’s rules.25
10. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Rules within thirty (30) calendar 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 enforcement pursuant to
Section 504(a) of the Act.26 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/Account number and FRN referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card,
an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter
the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in
block number 24A (payment type code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer – Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201
or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Mr. Perry shall
also send electronic notification on the date said payment is made to SCR-Response@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both First Class
and Certified Mail, Return Receipt Requested, to Michael W. Perry at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
23 See 47 U.S.C. § 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).
24 Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western Region 2011) (holding that violator’s
repeated acts of malicious and intentional interference outweigh evidence concerning his ability to pay); Hodson
Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee's continued
operation at variance with its construction permit constituted an intentional and continuous violation, which
outweighed permittee's evidence concerning its ability to pay the proposed forfeitures).
25 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 95.409, 95.411.
26 47 U.S.C. § 504(a).