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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Leonard D. Martin ) File No. 98-HU-147
)
Houston, TX ) NAL/Acct.No. X3254-003
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 3, 2000
By the Enforcement Bureau, Houston Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Leonard D. Martin apparently violated Section 301 of
the Communications Act of 1934 (``Act''), as amended,1 by
operating an unlicensed radio station without Commission
authorization; and Section 303(n) of the Act,2 by failing to
allow inspection of his radio station. We conclude that Leonard
D. Martin is apparently liable for a forfeiture in the amount of
seventeen thousand dollars ($17,000).
II. BACKGROUND
·
2. In May, 1998, the Commission received a written
complaint from an Amateur Radio operator asserting that an
Amateur Radio station identifying with the callsign KC5WHN
operated on unauthorized frequencies. On November 3, 1998, the
Legal Advisor for Enforcement, Compliance and Information Bureau,
sent a letter to Leonard D. Martin, licensee of record of Amateur
Radio station KC5WHN. The letter advised Martin of complaints
received by the Commission alleging that he operated on
unauthorized frequencies. In response to the letter, Martin
telephoned the CIB Legal Advisor for Enforcement and generally
denied the alleged unauthorized operation.
3. On February 27, 1999, a Commission agent, using a
mobile automatic direction finding (``MADF'') vehicle, observed
voice radio transmissions on the frequencies 27.545 and 27.535
MHz. The frequency 27.545 MHz is allocated exclusively to radio
stations of the United States government. The frequency 27.535
MHz is allocated exclusively to radio stations licensed in the
Industrial Radio Service. The radio station did not identify
itself, but responded to the name ``Leonard.'' The agent
determined that the source of the transmissions was an antenna on
the residence at 4415 Spellman, Houston, Texas, the address
listed on Martin's Amateur Radio license. There was no evidence
of a Commission authorization for this operation.
4. On March 15, 1999, a Commission agent, using a MADF
vehicle, observed voice radio transmissions on 27.370 MHz, a
frequency allocated as a ``guard'' frequency between channels in
the Citizens Band Radio Service. The station identified with the
name ``Leonard.'' The agent determined that the source of the
transmissions was a vertical antenna on the residence at 4415
Spellman, Houston, Texas, the address listed on Martin's Amateur
Radio license. Immediately thereafter, the agent knocked on the
door of the residence and was met by Martin. The agent requested
to inspect the radio station inside the residence, and Martin
refused. The agent advised Martin that his operation on 27.545
and 27.535 MHz constituted unlicensed operation in violation of
Section 301 of the Act, because Martin had no Commission
authorization to operate on those frequencies. The agent also
advised Martin that his refusal to allow inspection constituted
violation of Section 303(n) of the Act.
5. On April 2, 1999, the Commission's Houston Office
issued to Martin an Official Notice of Violation for operation of
his Amateur Radio station in violation of Sections 301 and 303(n)
of the Act. On April 8, 1999, the Houston Office received a
letter from Martin in response to the Official Notice of
Violation. In the letter, Martin 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....''
6. On July 22, 1999, Martin submitted to CIB Legal Advisor
for Enforcement his Amateur Radio license for cancellation. On
July 23, 1999, CIB Legal Advisor for Enforcement sent Martin a
letter acknowledging receipt of the license and confirming that
Martin's Amateur Radio license KC5WHN was cancelled effective
July 23, 1999. The letter also warned Martin that unlicensed
radio operation would constitute violation of Section 301 of the
Act.
7. On October 19, 1999, the Commission's Houston Office
received a complaint from a neighbor of Martin's that Martin's
radio operation was continuing to cause interference to
electronic equipment in their home. That same day, a Commission
agent, using a MADF vehicle, observed voice radio transmissions
on 27.535 MHz, a frequency allocated exclusively to licensed
stations of the Industrial Radio Service. The agent determined
that the source of the transmissions was a vertical antenna on
the residence at 4415 Spellman, Houston, Texas, Martin's
residence. Immediately thereafter, the agent visited the
neighbor complaining of radio interference and observed
interference on the neighbor's telephone.
8. On October 26, 1999, a Commission agent, using a MADF
vehicle, observed voice radio transmissions on 27.455 MHz, a
frequency allocated exclusively to licensed stations in the
Industrial Radio Service. The agent determined that the source
of the transmissions was a vertical antenna on the residence at
4415 Spellman, Houston, Texas, Martin's residence. There was no
evidence of a Commission authorization for this operation.
Immediately thereafter, the agent knocked on the door of the
residence and was met by Martin. The agent requested to inspect
the radio station inside the residence, and Martin refused.
Martin stated that he believed he was being unfairly targeted for
enforcement because there were many other operators that
transmitted on unauthorized frequencies.
III. DISCUSSION
9. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license.3 Section 303(n) of the Act sets forth the Commission's
authority to inspect all radio installations associated with
stations required to be licensed by, or subject to the provisions
of, any Act, in order to ascertain whether they conform to the
provisions of any Act.4
10. Based on the evidence before us, we find that on
February 27, October 19, and October 26, 1999, Leonard D. Martin
repeatedly5 and willfully6 violated Section 301 of the Act by
operating radio transmission apparatus without a Commission
authorization. We also find that on March 15 and October 26,
1999, Leonard D. Martin repeatedly and willfully violated Section
303(n) of the Act by refusing to allow an inspection of his radio
station upon reasonable request by an authorized Commission
representative.
11. 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 $10,000 for
unlicensed operation and $7000 for failure to allow inspection.7
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.8 Martin's violations were repeated and willful, and
resulted in harm in the form of electronic interference to
neighbors' home electronic equipment. Martin was advised of these
violations numerous times, both orally and in writing, by
Commission representatives and Martin indicated that he fully
understood the requirements of the Act. Martin repeated the
violations after receiving these warnings. Applying the
Forfeiture Policy Statement and statutory factors to the instant
case, a $17,000 forfeiture is warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,9 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,10 Leonard D. Martin is hereby NOTIFIED of his
APPARENT LIABILITY FOR A FORFEITURE in the amount of seventeen
thousand dollars ($17,000) for violating Section 301 of the Act11
and Section 303(n) of the Act.12
13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,13 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Leonard D. Martin SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
14. 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. X3254-003.
15. 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. X3254-003, and must include the NAL/Acct. No.
X3254-003.
16. 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.
17. 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. 20554.14
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Leonard D. Martin at 4415 Spellman, Houston, Texas
77035.
FEDERAL COMMUNICATIONS COMMISSION
Loyd P. Perry
Resident Agent, Houston Office,
Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 47 U.S.C. § 303(n).
3 47 U.S.C. § 301
4 47 U.S.C. § 303(n)
5 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.''
6 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).
7 12 FCC Rcd 17087 (1997), recon. denied, FCC 99?407 (rel.
December 28, 1999).
8 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).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 47 U.S.C. § 301
12 47 U.S.C. § 303(n)
13 47 C.F.R. § 1.80.
14 See 47 C.F.R. § 1.1914.