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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 )
MEMORANDUM OPINION AND ORDER
Adopted: November 7, 2000 Released: November 9,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny Leonard Martin's petition for reconsideration and affirm the
Forfeiture Order1 issued against Leonard D. Martin in the amount
of four thousand dollars ($4,000) 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 Mr.
Martin filed a response to the NAL. On July 12, 2000, the
Enforcement Bureau (``Bureau'') released a Forfeiture Order
reducing the proposed forfeiture to $4,000.
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
(``the agent''), 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 station. 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, the agent, using an 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
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, the agent investigated an
interference complaint against Mr. Martin. The agent, using an
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, the agent, using an 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. On March 3, 2000, the Houston Office issued a NAL in
the amount of $17,000 to Mr. Martin for violations of Sections
301 and 303(n) of the Act. In his response to the NAL, Mr.
Martin requested cancellation of the proposed forfeiture but did
not deny violating Sections 301 and 303(n).
11. In its Forfeiture Order, released July 12, 2000, the
Bureau concluded that Mr. Martin willfully and repeatedly
violated Section 301 of the Act by operating radio transmitting
apparatus without authorization on February 27, October 19, and
October 26, 1999; and that he willfully and repeatedly violated
Section 303(n) of the Act by refusing to make his radio
installation available for inspection on March 15 and October 26,
1999. The Forfeiture Order assessed a monetary forfeiture of
$4,000 for those violations. The sole basis for reducing the
$17,000 forfeiture amount proposed by the NAL to $4,000 was Mr.
Martin's inability to pay more than $4,000.
12. In his petition for reconsideration of the Forfeiture
Order, Mr. Martin still does not deny operating radio
transmitting apparatus without authorization or refusing to make
his radio installation available for inspection. However, he
propounds the following arguments for reduction or rescission of
(a) The Commission ``failed to comply with its own
procedures.'' Specifically, Mr. Martin asserts that, when
an FCC agent requested permission to inspect his radio
installation, the agent ``did not provide [Mr. Martin]
proper notice to inspect [Mr. Martin's] communications
devices or of any pending investigation, or allow [Mr.
Martin] an opportunity to have an attorney present'' and did
not allow sufficient time for Mr. Martin ``to exercise [his]
rights as a U.S. Citizen to review any FCC rule or federal
law that would permit unwarranted entry into [his] residence
by the FCC.''
(b) The Forfeiture Order ``is based upon unsubstantiated
allegations with insufficient evidentiary support.'' In
particular, Mr. Martin contends that another station near
his residence ``could have been'' the source of the
transmissions observed by the FCC agent and that there is
insufficient proof that Mr. Martin was the operator the
station observed by the FCC agent.
(c) The forfeiture amount is ``grossly disproportionate to
the alleged violations.'' Specifically, Mr. Martin asserts
that the forfeiture amount of $4,000 is unreasonable ``given
the nature and extent of the alleged violations.'' Mr.
Martin also contends that the Bureau did not consider all
the required mitigating factors. According to Mr. Martin,
these include: the number of occurrences; the corrective
measures Mr. Martin agreed to take; Mr. Martin's ability to
pay; and ``the fact that no licensed radio station
complained of interference nor was there any proof of actual
harm caused by any radio transmission from [Mr. Martin's]
(d) The Commission, by imposing a forfeiture against Mr.
Martin, has exceeded its authority to regulate interstate
communications under the Commerce Clause of the
Constitution. Mr. Martin argues that, although Section
301(d) of the Act authorizes the Commission to regulate
radio communications within one state as well as between
states, the statute must be interpreted and applied in a
manner consistent with constitutional limitations. In
particular Mr. Martin claims that, because there has been no
showing that his transmissions were capable of causing
harmful interference to interstate communications, he cannot
be prohibited from making those transmissions without a
(e) The prohibition of transmissions by Mr. Martin on
frequencies for which he is not authorized and the
imposition of a monetary forfeiture against Mr. Martin for
making such transmissions violate the First Amendment to the
United States Constitution.
(f) The imposition of a forfeiture against Mr. Martin
without an opportunity for a hearing or ``to remedy [Mr.
Martin's] alleged violation Section 301 of the
Communications Act'' violates the Due Process clause of the
Fourteenth Amendment to the United States Constitution.
(g) The Commission is violating the Due Process clause of
the Fourteenth Amendment to the United States Constitution
by ``selectively'' initiating a forfeiture proceeding
against Mr. Martin and ``not targeting thousands of other
stations'' which operate without authorization.
13. We reject the arguments made in Mr. Martin's petition
(a) The agent who requested permission to inspect Mr.
Martin's radio installation on March 15 and October 26,
1999, followed proper procedures. On both occasions the
agent informed Mr. Martin that Section 303(n) of the Act
authorizes the Commission to inspect radio installations and
that the agent had traced transmissions on frequencies for
which Mr. Martin was not authorized to Mr. Martin's
residence. Immediate, on-the-spot inspections are
necessary in such circumstances because ``Any delay . . .
can result in changed conditions of the transmitting
equipment or its operation, adversely affecting the
efficiency of inspections." Ralph Yago, 35 FCC 113, 125
(Rev.Bd. 1963). Further, nothing in the Communications Act
requires the Commission to allow a subject of an inspection
to have opportunity to have an attorney present during a
civil investigation proceeding.
(b) The Bureau's conclusion that Mr. Martin operated radio
transmitting apparatus without authorization on February 27,
October 19, and October 26, 1999, is supported by
substantial evidence. On each occasion, the agent
determined electronically that transmissions on a frequency
or frequencies for which Mr. Martin was not authorized
emanated from an antenna installed at Mr. Martin's
residence. The only person observed at Mr. Martin's
residence on any of these occasions was Mr. Martin. Mr.
Martin has had ample opportunity to provide information, if
it exists, which shows that another person operated the
station located at his residence; but he has not done so.
During the transmissions observed on February 27, 1999, the
operator of the station located at Mr. Martin's residence
responded to the name ``Leonard.''
(c) As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503(b) of
the Act,4 Section 1.80 of the Rules,5 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.6 In the Forfeiture Order, we considered all
factors applicable to this matter and reduced the monetary
forfeiture from $17,000 to $4,000 on the basis of Mr.
Martin's inability to pay a larger amount. Mr. Martin has
not furnished any information which justifies a further
(d) Mr. Martin's Commerce Clause argument is dependent on
the incorrect assumption that transmissions emanating from
his residence on 27.445, 27.535 and 27.545 MHz are not
capable of interfering with interstate communications. In
fact, transmissions on those frequencies are capable of long
range (interstate) propagation through the natural
phenomenon known as sky (``skip'') wave. Furthermore, the
view that the Commission cannot constitutionally regulate
communications unless they are capable of interfering with
interstate communications is erroneous. See National
Broadcasting Co. v. United States, 319 U.S. 190, 209-217
(1943); FCC v. League of Women Voters of California, 468
U.S. 364, 377 (1984); and Stephen Paul Dunifer, 11 FCC Rcd
718, 727 (1995).
(e) The prohibition against unlicensed operation does not
abridge Mr. Martin's First Amendment rights. The United
States Supreme Court has held repeatedly that there is no
constitutional right to use radio facilities without a
license. See Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 388 (1969); and National Broadcasting Co. v. United
States, 319 U.S. 190, 227 (1943).
(f) . The Commission did not abridge Mr. Martin's right to
procedural Due Process by failing to provide opportunities
for an evidentiary hearing and for correction of the
violations prior to the imposition of the forfeiture.
Sections 503 and 504 of the Communications Act7 provide
safeguards which satisfy Due Process requirements.8 See
Stephen Paul Dunifer, 11 FCC Rcd 718, 729 (1995). Further,
nothing in the Communications Act requires the Commission to
provide an unlicensed operator the opportunity for an
evidentiary hearing or an opportunity to correct a violation
prior to imposition of a forfeiture.
(g) The Commission did not abridge Mr. Martin's right to
procedural Due Process by proceeding against him
``selectively.'' The case against Mr. Martin arose from the
routine investigation of a complaint. As the Commission
stated in KMAP, Inc., 46 FCC 2d 978 (1974): ``While our
limited resources may result in some violators going
unpunished, that does not mean that we cannot impose
sanctions against those violators we do find.''9
14. We have examined Mr. Martin's petition for
reconsideration pursuant to the statutory factors set forth
above, and in conjunction with the Policy Statement as well. As
a result of our reconsideration, we conclude that Mr. Martin has
failed to provide a sufficient justification for rescission or
further reduction of the forfeiture.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.106 of the Rules, Mr. Martin's petition for reconsideration IS
DENIED and the Forfeiture Order, 15 FCC Rcd 12699 (Enf. Bur.
2000), released on July 12, 2000, IS AFFIRMED.
16. Payment of the forfeiture of $4,000 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 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
17. 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, 15 FCC Rcd 12699 (Enf. Bur. 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,
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 7 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. §§ 503 and 504.
8 Specifically, the NAL must specify the rules alleged to
be violated, the facts upon which the charge against the
named violator is based, and the date upon which the alleged
violation occurred. Additionally, the party is given an
opportunity to respond to the NAL and to have a trial de
novo. 47 U.S.C. §§ 503(b)(5), 504(a), (b). See Pleasant
Broadcasting Co. v. FCC, 564 F.2d 496 (D.C.Cir.1977).
9 46 FCC 2d at 979
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.