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


In the Matter of                   )
                              )    File No.:  EB-98-HU-147
Leonard D. Martin                  )
                              )    NAL/Acct. No.:  X3254-003
Houston, TX                        )    


                         FORFEITURE ORDER

  Adopted:  July 11, 2000               Released:  July 12, 2000       

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we set aside  the 
previously issued Forfeiture Order in this matter,1 and we  issue 
a monetary  forfeiture in  the amount  of four  thousand  dollars 
($4,000) against Leonard D.  Martin for willfully and  repeatedly 
violating Sections 301  and 303(n) of  the Communications Act  of 
1934, as amended (``the Act'').  2  The noted violations  involve 
Mr.  Martin's  operation  of  a  two-way  radio  station  without 
Commission authorization and his refusal to allow inspections  of 
his radio installation. 

     2.   On March  3, 2000,  the Houston  Resident Agent  Office 
(``Houston Office'') issued  a Notice of  Apparent Liability  for 
Forfeiture (``NAL'') in the amount of seventeen thousand  dollars 
($17,000) to Mr. Martin for the referenced violations.3  On  June 
26,  2000,  the   Enforcement  Bureau   (``Bureau'')  adopted   a 
Forfeiture Order assessing a  forfeiture of  $17,000 against  Mr. 
Martin based, in part, on Mr. Martin's failure to file a response 
to the NAL.  Unbeknownst to the Bureau, Mr. Martin had, in  fact, 
filed a response to the NAL with the Commission on April 6, 2000.  
However, Mr. Martin's response was  misrouted and the Bureau  did 
not become aware of it until  June 27, 2000.  Because Mr.  Martin 
actually did respond to the NAL, we will set aside the Forfeiture 
Order adopted on June 26,  2000, pursuant to Section 1.113(b)  of 
the Commission's Rules (``Rules''),4 and consider his response to 
the NAL in this Order.

                         II.  BACKGROUND

     3.   Mr. Martin  is the former  licensee of amateur  station 
KC5WHN.  By letter of November  3, 1998, the Commission  notified 
Mr. Martin  of complaints  concerning  a station  identifying  as 
KC5WHN.  The complaints asserted that the station identifying  as 
KC5WHN was operating on frequencies which were not authorized for 
that station.   In his  telephone response  to that  letter,  Mr. 
Martin denied the alleged unauthorized operation.

     4. On February 27, 1999,  an agent from the Houston  Office, 
using a mobile  automatic direction  finding (``MADF'')  vehicle, 
observed voice  radio  transmissions on  frequencies  27.535  and 
27.545 MHz.  Frequency 27.535  MHz  is allocated  exclusively  to 
Industrial radio  stations.  Frequency  27.545 MHz  is  allocated 
exclusively to  United  States Government  radio  stations.   The 
transmissions were unidentified,  but the  operator responded  to 
the  name  ``Leonard.''   Using  the  MADF  vehicle,  the   agent 
determined that the  source of the  transmissions was an  antenna 
mounted on the residence at 4415 Spellman, Houston, Texas,  which 
was then the address of  record for Mr. Martin's amateur  service 
license.  There  was  no  record of  a  Commission  authorization 
permitting Mr. Martin to operate on 27.535 MHz or 27.545 MHz.

     5.  On March  15, 1999,  an agent from  the Houston  Office, 
using a  MADF  vehicle,  observed voice  radio  transmissions  on 
27.370 MHz,  a  frequency  allocated  as  a  ``guard''  frequency 
between authorized channels in  the Citizens Band Radio  Service.  
The operator identified himself  as ``Leonard.''  Using the  MADF 
vehicle,  the   agent  determined   that   the  source   of   the 
transmissions was a vertical antenna mounted on the residence  at 
4415 Spellman, Houston, Texas.  Immediately after his  monitoring 
observations, the agent  knocked on  the door  of the  residence.  
Mr. Martin answered the door  and refused the agent's request  to 
inspect the radio  station located in  the residence.  The  agent 
informed Mr.  Martin that  his previously  observed operation  on 
27.535 and 27.545 MHz was unlicensed and in violation of  Section 
301  of  the   Act  because   Mr.  Martin   held  no   Commission 
authorization to operate  on those frequencies.   The agent  also 
informed Mr.  Martin  that his  refusal  to allow  an  inspection 
constituted violation of Section 303(n) of the Act.

     6.  On April 2, 1999,  the Houston Office issued Mr.  Martin 
an Official  Notice  of  Violation (``NOV'')  for  violations  of 
Sections 301 and  303(n) of the  Act.  In Mr.  Martin's April  7, 
1999, response to the NOV, he stated:   ``I now fully  understand 
that operation on  the frequencies  outlined is  a violation  ... 
that  the   FCC  has   the  authority   to  inspect   all   radio 
installations...  [and] ...  I promise no  further action by  the 
Commission will  be necessary  to insure  my complete  compliance 
with the FCC Rules....''

     7.  On  July  22, 1999,  Mr.  Martin submitted  his  amateur 
service license for  KC5WHN to the  Commission for  cancellation.  
By letter of July 23,  1999, the Commission acknowledged  receipt 
of the license,  and confirmed  that it  was cancelled  effective 
July 23,  1999.   The letter  also  warned Mr.  Martin  that  any 
unlicensed radio operation would constitute violation of  Section 
301 of the Act.

     8.  On October 19,  1999, an agent  from the Houston  Office 
investigated an interference complaint  against Mr. Martin.   The 
agent, using a MADF  vehicle, observed voice radio  transmissions 
on frequency 27.535 MHz, and determined that the source of  those 
transmissions was  a vertical  antenna  mounted on  Mr.  Martin's 
residence, at 4415 Spellman,  Houston, Texas.  This frequency  is 
allocated exclusively  to  licensed  Industrial  radio  stations.  
There was no record of a Commission authorization permitting  Mr. 
Martin to operate on 27.535 MHz.

     9. On October 26,  1999, an agent  from the Houston  Office, 
using a  MADF  vehicle,  observed voice  radio  transmissions  on 
27.455 MHz, a frequency allocated exclusively to Industrial radio 
stations.  Using the MADF vehicle, the agent determined that  the 
source of those transmissions was  a vertical antenna mounted  on 
Mr. Martin's residence, at 4415 Spellman, Houston, Texas.   There 
was no record of a Commission authorization permitting Mr. Martin 
to operate on 27.455 MHz.  Immediately after the monitoring,  the 
agent  knocked  on  the  door  of  the  residence  and  requested 
permission to inspect the station located there.  Mr. Martin, who 
answered the door, refused to allow an inspection. 

     10.  Based  on the  above,  on March  3, 2000,  the  Houston 
Office issued a NAL in  the amount of seventeen thousand  dollars 
($17,000) to Mr. Martin for violations of Sections 301 and 303(n) 
of the Act.   

     11.  In his response  to the NAL, Mr.  Martin does not  deny 
that  he  committed  the  referenced  violations.  Iinstead,   he 
requests cancellation of the forfeiture proposed by the NAL.  Mr. 
Martin contends that he is  unable pay a $17,000 forfeiture.   As 
support for this claim, he submits copies of his 1996, 1997,  and 
1998 federal income tax returns.  In addition, Mr. Martin  states 
that he is ``prepared to take  all steps in good faith to  insure 
further actions by the Commission . . . will not be  necessary.''  
Specifically, Mr. Martin states  that he agrees to:   permanently 
dismantle and  sell  or  donate all  of  his  radio  transmitting 
equipment  and  antenna  and  provide   proof  of  such  to   the 
Commission; forfeit all proceeds of such sales to the  Commission 
or to a charitable organization of his choice, as determined most 
appropriate  by  the  Commission;   and   permit  an   authorized 
Commission agent to inspect his residence to ensure all equipment 
has been removed.

                        III.  DISCUSSION

     12.  As the NAL explicitly states, the forfeiture amount  in 
this case  was assessed  in accordance  with Section  503 of  the 
Act,5 Section 1.80 of the Rules,6 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)  (``Policy  Statement'').  
Section 503(b)  of  the  Act  requires  that,  in  examining  Mr. 
Martin's response, 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.7 

     13.  Section  301  of  the  Act  prohibits  radio  operation 
``except under and in accordance with this Act and with a license 
in that  behalf  granted  under the  provisions  of  this  Act.''  
Section 303(n) of the Act authorizes the Commission ``to  inspect 
all radio installations required to be licensed . . .''
      
     14.  Mr. Martin does not deny the violations alleged in  the 
NAL.  In view of the facts set forth above, we conclude that  Mr. 
Martin operated without authorization  on frequencies 27.535  and  
27.545 MHz on February 27, 1999, 27.535 MHz on October 19,  1999, 
and 27.455  MHz on  October  26, 1999,  in willful  and  repeated 
violation of Section 301 of the Act.  Additionally, we find that, 
on March 15 and October 26, 1999, Mr. Martin refused to make  his 
radio installation  available  for  inspection,  in  willful  and 
repeated violation of Section 303(n) of the Act.

     15.  In view of his past history, we can not rely on Mr. 
Martin's promises of remedial action.  Mr. Martin's most recent 
violations occurred despite three written warnings and at least 
one verbal warning from the Commission, and despite Mr. Martin's 
promise, in his response to the NOV, that he would comply with 
the Commission's Rules.8  In any event, as the Commission has 
stated previously, subsequent remedial action will not nullify a 
forfeiture penalty.  See KGVH, Inc., 42 FCC 2d 258, 259 (1973).

     16.  We have examined  Mr. Martin's response  to the NAL  in 
light of the above statutory  factors and  the factors set  forth 
in the  Policy  Statement.   Taking all  of  these  factors  into 
account, including Mr. Martin's limited  ability to pay the  full 
amount as demonstrated in his returns, the serious nature of  his 
violations and the continuation of his violations after  warnings 
and promises of compliance, we conclude that cancellation of  the 
proposed  forfeiture  is  not  justified  and  that  the   proper 
forfeiture amount is $4,000. 





                      IV.  ORDERING CLAUSES

     17.  ACCORDINGLY, IT IS ORDERED that, pursuant to Section 
1.113(b) of the Rules, the Forfeiture Order (DA 00-1428) released 
June 26, 2000, IS SET ASIDE.

     18.  IT IS FURTHER ORDERED that, pursuant to Section  503(b) 
of the  Act, and  Sections  0.111, 0.311  and 1.80(f)(4)  of  the 
Rules,9 Leonard D. Martin, IS LIABLE FOR A MONETARY FORFEITURE in 
the amount of $4,000  for willful and  repeated violation of  the 
provisions of Sections 301 and 303(n) of the Act.

     19.  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.10  
Payment may  be  made by  credit  card through  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,''    to   the    Federal 
Communications Commission,  P.O.  Box  73482,  Chicago,  Illinois 
60673-7482.  The payment should note ``NAL/Acct. No.  X3254-003'' 
referenced above.  Requests for full payment under an installment 
plan should be sent to: Chief, Credit and Debt Management Center, 
445 12th Street, S.W., Washington, D.C. 20554.11

     20.  IT IS FURTHER ORDERED  that a copy of this Order  shall 
be sent by  Certified Mail  -- Return Receipt  Requested, to  Mr. 
Leonard D. Martin at 4415 Spellman, Houston, Texas 77035.

                         FEDERAL COMMUNICATIONS COMMISSION
                         

                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

     1 Forfeiture Order, DA 00-1428 (Enf. Bur., released June 27, 
2000).

     2 47 U.S.C.  301 and 303(n).

     3 Notice of Apparent Liability for Forfeiture, NAL Acct. No. 
X3254-003 (Enf. Bur., Houston Office, released March 3, 2000).

     4  47 C.F.R.  1.113(b).

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

     6 47 C.F.R.  1.80.

7    7 47 U.S.C.  503(b)(2)(D).

     8  See para. 6 infra.

     9 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     10 47 U.S.C.  504(a).

     11 See 47 C.F.R.  1.1914.