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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,
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
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
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
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.
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. §
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
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
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.