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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
Mike Morrison ) File
Number: EB-00-AT-1083
3880 Nowlin Road )
Kennesaw, GA 30144 ) NAL/Acct. No.:
X3248005
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 11, 2000
By the Enforcement Bureau, Atlanta Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Mike Morrison (``Morrison''), a.k.a.
Morrison Sales Company, has apparently violated Section 302 of
the Communications Act of 1934, as amended1(``the Act''), by
marketing a non-compliant transmitter (``SKY-2000'') for use in
the FM broadcast band. We conclude that Morrison is apparently
liable for a forfeiture in the amount of two thousand dollars
($2,000).
II. BACKGROUND
2. On September 28, 1999, agents from the Enforcement
Bureau's Atlanta Office began an investigation into the marketing
of low power FM transmitters as a result of a local news report
featuring the transmitter. Agents located and conducted field
strength measurements of eleven SKY-2000 FM transmitters in
operation that were manufactured and distributed by Skywave
Electronics, Rockford, IL and marketed by Morrison. The
measurements revealed that all eleven transmitters were operating
in excess of the authorized limits as prescribed in the
Commission rules.2
3. On September 28, 1999 during an inspection of a Skywave
2000 transmitter and on
October 15, 1999 during an office interview, the Atlanta Office
verbally warned Morrison regarding the penalties for continuing
to market non-compliant RF devices. It was Morrison's contention
that Skywave Electronics, Inc. had led him to believe (by virtue
of their obtaining a Grant of Equipment
Authorization/Certification and affixing a FCC Identifier to
the device) that their devices were approved for marketing. The
Atlanta Office informed
Morrison that it was still his responsibility as the marketer of
an RF device to ensure that the
device met the requirements of the Commission's rules even though
the device had a FCC Identifier affixed to it. On November 25,
1999, the Atlanta Office issued Morrison an Official Notice for
violating Section 302 of the Act for marketing non-compliant RF
devices.3 On December 2, 1999, the Atlanta Office received a
written response from Morrison indicating his intent to no longer
market Skywave products.
4. On August 16, 2000, an agent from the Atlanta Office
inspected a low power FM
transmitter operating at a restaurant in Marietta, Georgia. The
device was identified as a SKY-2000 FM transmitter and was found
to be operating in excess of the authorized limits as prescribed
in the Commission rules.4 The owner of the restaurant stated
that Morrison sold them the SKY-2000 transmitter in May 2000.
Morrison confirmed the sale of the device during a telephone
interview with an agent of the Atlanta Office on August 17, 2000.
III. DISCUSSION
5. Section 302 of the Act authorizes the Commission to
regulate equipment capable of
emitting radio frequency energy that may cause interference to
radio communications. The Act further states that ``no person
shall manufacture, import, sell, offer for sale, or ship devices
or home electronic equipment and systems, or use devices, which
fail to comply with regulations promulgated pursuant to this
section''.5
6. Morrison, as a marketer of the SKY-2000 transmitter,
is responsible for ensuring that
it is compliant with Commission rules.6 He was repeatedly
warned, verbally and in writing,7 about the penalties for
marketing non-compliant devices, yet, he continued to market the
non-compliant device in violation of Section 302 of the Act.8
7. Section 503(b) of the Act, 47 U.S.C. § 503(b)(1),9
provides that any person who
willfully10 and repeatedly11 fails to comply with the terms and
conditions of the Commission's rules shall be liable for a
forfeiture penalty. Based on the above evidence, we find that
Morrison did willfully and repeatedly violated Section 302 of the
Act.12.
8. Pursuant to the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement''), the base forfeiture amounts are $2,000 for the
marketing of non-compliance Part 15 devices. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act,
which include the nature, circumstances, extent, and gravity of
the violation(s), 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.13 Morrison's
violations were repeated and willful. Applying the Forfeiture
Policy Statement and statutory factors to the instant case, a
$2,000 forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act14, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules15, Mike
Morrison is hereby NOTIFIED of his APPARENT LIABILITY FOR A
FORFEITURE in the amount of two thousand dollars ($2,000) for
violating Section 302 of the Act.16
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's rules17, within thirty days of the released date
of this NOTICE OF APPARENT LIABILITY, Mike Morrison SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture 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 Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. X3248005.
12. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, Attn: Enforcement Bureau -TPSD,
NAL/Acct. No. X3248005, and must include the NAL/Acct. No.
X3248005.
13. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices; or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.18
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Mike Morrison, 3880 Nowlin Road, Kennesaw, GA
30144.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director
Atlanta Office
_________________________
1 Section 302 of the Act, 47 U.S.C. § 302
2 47 C.F.R. § 15.239(b)
3 Section 302 of the Act, 47 U.S.C. § 302
4 47 C.F.R. § 15.239(b)
5 Section 302 of the Act, 47 U.S.C. § 302
6 47 C.F.R. § 15.201(b)
7 Issued an Official Notice on November 25, 1999
8 Section 302 of the Act, 47 U.S.C. § 302
9 47 U.S.C. § 503(b)(1). See also Section 1.80(a)(1) and (2), 47
C.F.R. § 1.80(a)(1) and (2)
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
11 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`repeated', when used with reference to the commission or
omission of any act, means the commission or omission of such act
more than once or, if such commission or omission is continuous,
for more than one day.''
12 Section 302 of the Act, 47 U.S.C. § 302
13 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01 (discussion of upward and
downward adjustment factors).
14 47 U.S.C. § 503(b)
15 47 C.F.R. §§ 0.111, 0.311, 1.80
16 Section 302 of the Act, 47 U.S.C. § 302
17 47 C.F.R. § 1.80
18 See 47 C.F.R. § 1.1914