Click here for Microsoft Word Version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from
WordPerfect or Word to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).

*****************************************************************



                           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                        )    


                   MEMORANDUM OPINION AND ORDER

  Adopted:  November 7, 2000            Released:   November   9, 
2000      

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     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.

                         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 
(``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 
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,  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 
the forfeiture:

     (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] 
     residence.''

     (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 
     license.

     (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. 






                        III.  DISCUSSION

     13.  We reject the arguments made in Mr. Martin's petition 
for reconsideration:

     (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 
     reduction.

     (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, 
     2000).

     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.