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


                              )
In the Matter of                   )
                              )    NAL/Acct. No.  815KC0004
Mark H. Fulling                         )     
Garden City, Kansas                )
                              
                                     
                  MEMORANDUM OPINION AND ORDER


   Adopted:     March 23, 2000          Released:     March   29, 

2000

By the Commission:

     1.   In this Order, we dismiss in part and deny in part  the 

March 31, 1999 application for review filed by Mark H. Fulling of 

the Forfeiture Order1  in this proceeding.   Pursuant to  Section 

503(b) of  the  Communications Act  of  1934, as  amended  (``the 

Act''), 47 U.S.C. 503(b), and Section 1.80 of the  Commission's 

Rules (``the Rules''),  47 C.F.R. 1.80,  the former  Compliance 

and Information Bureau  found Mr. Fulling  liable for a  monetary 

forfeiture in the amount of $8,000 for operation of an unlicensed 

FM broadcast station, in willful violation of Section 301 of  the 

Act, 47  U.S.C.   301.   For  the reasons  discussed  below,  we 

dismiss the application in  part as procedurally defective,  deny 

the  remainder  of  the   application,  and  affirm  the   $8,000 

forfeiture.  

                           BACKGROUND

     2.   In response  to  a complaint  regarding  an  unlicensed 

radio station  broadcasting  on the  frequency  of 102.1  MHz  in 

Garden City, Kansas,  the Commission's Kansas  City Field  Office 

verified that no license  had been issued  for operation on  that 

frequency in that location.   The agent determined by  monitoring 

that the  unlicensed  radio  station was  transmitting  from  Mr. 

Fulling's residence.  On August 26, 1998, the agent attempted  to 

inspect the station.  At that time, Mr. Fulling admitted that  he 

was operating with nine watts of power.  Mr. Fulling also  stated 

that he was  aware that the  Commission was considering  changing 

the broadcast rules to allow low-power FM broadcasts such as  his 

operation, but refused to allow the inspection.  Mr. Fulling  was 

given a  written  warning  informing him  of  the  penalties  for 

unlicensed broadcast operations on August 26, 1998.

     3.   On September 2, 1998, the District Director of the 
Kansas City Field Office issued a Notice of Apparent Liability 
for a monetary forfeiture in the amount of $8,000 to Mr. Fulling 
for willful and repeated violations of Section 301 of the Act.  
In his written response to the NAL, Mr. Fulling denied committing 
any violations of any of the Commission's regulations, and 
claimed that his radio equipment met or exceeded Commission 
specifications, that his broadcasts did not cause interference to 
any licensed radio station, and that he did not intend to 
broadcast again without a license.  The Forfeiture Order released 
on March 1, 1999 affirmed the forfeiture, stating that Mr. 
Fulling's reliance on the arguments noted above was misplaced and 
only served as an admission to the violation of Section 301 of 
the Act.2

     4.   In his  application for  review, Mr.  Fulling  contends 

that (1) the Commission committed prejudicial procedural error by 

failing to mail  a copy  of the Forfeiture  Order to  him or  his 

attorney ``within a reasonable time'' after it was released;3 (2) 

the Forfeiture Order  should be dismissed  or stayed pending  the 

outcome of the low power FM rulemaking; (3) the Forfeiture  Order 

erroneously  found  that  Mr.   Fulling  admitted  to   operating 

broadcast equipment without a license; (4) the Commission  failed 

to properly  apply the  statutory  penalty factors  and  downward 

adjustment criteria set out  in its Forfeiture Policy  Statement; 

and (5)  there was  no  evidence that  the Commission  took  into 

account Mr. Fulling's ability to pay, ``as required by statute,'' 

in assessing the forfeiture amount.4 

                           DISCUSSION

     5.   With the exception of the  claim that he did not  admit 
to operating broadcast equipment without a license, Mr. Fulling's 
arguments are  procedurally barred  by  Section 1.115(c)  of  our 
rules because they rely on questions  of fact and law upon  which 
the designated  authority has  been  afforded no  opportunity  to 
pass.   See 47 C.F.R.  1.115(c); American Mobilephone, Inc.,  FCC 
00-15, 2000  WL  29952  (released  January  18,  2000);  Courtesy 
Communications, Inc., 14  FCC Rcd 4198,  4202-4203 (1999);  Kevin 
Johnson, 9 FCC Rcd 2471, 2473  (1993); Sherry Rullman, 8 FCC  Rcd 
4012 (1993).   The  proper  procedure would  have  been  for  Mr. 
Fulling to file a petition for reconsideration of the  Forfeiture 
Order, pursuant to  Section 1.106 of  the Commission's Rules,  47 
C.F.R. 1.106.

     6.   The finding  that  Mr.  Fulling admitted  that  he  was 
operating the station without a license is based on comments made 
by Mr.  Fulling in  the presence  of the  FCC agent  and a  local 
police officer during the August 26, 1998 attempted inspection of 
Mr. Fulling's unlicensed station.  When  the officer and the  FCC 
agent approached  Mr.  Fulling  at  his  residence,  Mr.  Fulling 
indicated that  he knew  why they  wanted to  speak to  him,  and 
stated that  he was  expecting them  because he  had spotted  the 
direction finding  vehicle  the previous  evening.   Mr.  Fulling 
informed the officer and  FCC agent that he  was only using  nine 
watts of power and that he was aware that the Commission had been 
looking at changing the Rules to allow community and neighborhood 
broadcasting  such  as  his  operation.   He  also  admitted   to 
operating without a license, after refusing to allow the agent to 
enter the premises to inspect the station.  Although Mr.  Fulling 
now claims  he did  not admit  to operating  the station  without 
license, the foregoing facts belie that assertion.  

                        ORDERING CLAUSES

     7.   ACCORDINGLY, IT IS  ORDERED that,  pursuant to  Section 

1.115(c) of the  Rules, 47 C.F.R.  1.115(c), Mark H.  Fulling's 

application for  review  of  the Forfeiture  Order  for  NAL  No. 

815KC0004 IS DISMISSED IN PART AND DENIED IN PART.

     8.   IT IS FURTHER ORDERED that, pursuant to Section  503(b) 

of the Act, 47 U.S.C. 503(b), and Section 1.80 of the Rules, 47 

C.F.R. 1.80,  Mark H.  Fulling must  pay the  amount of  $8,000 

within thirty  (30)  days of  the  release date  of  this  Order. 

Payment may be  made by  check or money  order, drawn  on a  U.S. 

financial institution,  payable  to  the  Federal  Communications 

Commission. Payment  may also  be made  by credit  card with  the 

appropriate documentation.5   The  remittance  should  be  marked 

``NAL Acct. No. 815KC0004'' and mailed to the following address:

               Federal Communications Commission
               P.O. Box 73482
               Chicago, Illinois 60673?7482

Forfeiture penalties not paid within 30 days will be referred  to 

the U.S.  Attorney for  recovery in  a civil  suit. 47  U.S.C.   

504(a).

     9.   IT IS FURTHER ORDERED that  a copy of this Order  shall 

be sent by certified mail,  return?receipt requested, to Mark  H. 

Fulling, in care of his counsel of record, Dennis J.  Highberger, 

1301 Vermont, Lawrence, Kansas 66044.
  
                              FEDERAL COMMUNICATIONS COMMISSION

  

                              Magalie Roman Salas
                              Secretary
_________________________

     1  14 FCC Rcd 3479 (Compl. & Inf. Bur. 1999).

     2 See  Stephen Paul  Dunifer,  11 FCC  Rcd 718,  727  (1995) 
(Section 301 of the  Act specifically prohibits the  transmission 
of radio communications without a license and there is no support 
for the view that this  licensing requirement cannot be  enforced 
unless there  is a  specific showing  that the  unlicensed  radio 
transmission caused or may cause harmful interference).  See also 
National Broadcasting Co. v. United States, 319 U.S. 190, 209-217 
(1943).

     3 Mr. Fulling contends that the Forfeiture Order was mailed 
eight days after its release.

     4 Mr. Fulling also contends  that the ban on most  low-power 
FM  broadcasting  violates  the  First  Amendment  to  the   U.S. 
Constitution, and  that  assessment  of a  forfeiture  without  a 
hearing violates  the Fifth  Amendment to  the Constitution,  but 
explicitly reserves these arguments for judicial review. 

5       Payment  of  the   forfeiture  in  installments  may   be 
considered as a separate matter in accordance with Section 1.1914 
of the Rules, 47 C.F.R.  1.1914.  Requests for installment plans 
should be mailed to:  Chief,  Credit and Debt Management  Center, 
445  Twelfth   Street,  S.W.,   Washington,  D.C.   20554.    For 
information regarding credit card payments, the Chief, Credit and 
Debt Management Center, should be contacted at (202) 418?1995.