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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Joseph S. McCreary ) File Number EB-01-TP-399
3305 Bayou Boulevard ) NAL/Acct.No.200232700006
Pensacola, FL 32503 )
)
) FRN: 0006-9319-84
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 7, 2002
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Mr. Joseph S. McCreary apparently violated Section
95.411 of the Federal Communications Commission's (``FCC'')
Rules1 by using an external radio frequency power amplifier
(``linear amplifier'') as part of his Citizens Band Radio
(``CB'') station. We conclude that Joseph S. McCreary is
apparently liable for a forfeiture in the amount of five thousand
dollars ($5,000).
II. BACKGROUND
2. On September 26, 2001, the FCC Enforcement Bureau's
Tampa Field Office (``Tampa Office'') received complaint letters
dated September 13 and 14, 2001. The complaint concerned
interference to consumer home electronic entertainment devices
allegedly caused by the operation of a CB radio station operated
by Mr. McCreary. The complaint also alleged that Mr. McCreary
used a 1,000 watt linear amplifier. The complaint stated that
other neighbors were also affected by the interference.
3. On December 17, 2001, the Office of Congressman Jeff
Miller referred this same complaint to the Tampa Office.
4. On March 11, 2002, agents from the Tampa Office went to
3305 Bayou Boulevard, Pensacola, Florida, the address stated in
the complaint as the location of Mr. McCreary's CB radio station,
to investigate the complaint. Upon arrival at this address, the
agents spoke with Mr. McCreary and conducted an inspection of Mr.
McCreary's CB radio station located inside his residence. The
agents observed a Varmint Bilinear Quad Power Base linear
amplifier; model XL 1000, attached to a CB transceiver. The
agents saw a coaxial cable interconnecting the linear amplifier
and the CB radio. Mr. McCreary turned on the CB radio station at
the agents' request. With the transmitter powered on, the agents
observed the power amplifier meter display a reading of ``2'' on
a scale of one to ten. Mr. McCreary admitted to the agents that
he had been operating the station with the attached linear
amplifier at a power of at least twenty watts. Based on the
power meter reading and Mr. McCreary's statements, the agents
concluded the power output of the station was approximately 20
watts. A search of Commission records showed that Mr. McCreary
holds no license in any radio service that would allow him to
operate an external RF power amplifier.
III. DISCUSSION
5. Section 95.411(a)(1) of the Commission's Rules
prohibits attaching a power amplifier to a CB transmitter in any
way.2 Furthermore, pursuant to Section 95.411(c), there is a
presumption that a linear or other external RF power amplifier
has been used if it is found in the possession of, or on the
premises of, the CB radio station and there is other evidence
that the CB station has be operated with more power than allowed
by the Rules.3 In this case, Mr. McCreary's CB radio station
consisted of a CB transceiver with an attached linear amplifier.
Also, there was other evidence that Mr. McCreary's CB radio
station had operated with more power than allowed by the Rules;
namely that the operation of the CB radio station caused
interference to neighborhood electronic equipment, Mr. McCreary's
admission that he used a linear amplifier attached to his CB
radio, Mr. McCreary's admission that his station's power output
was at least twenty watts, and the readout of the power meter
during the station inspection. Based on the evidence before us,
we find that on March 11, 2002, Mr. Joseph S. McCreary willfully4
violated Section 95.411 of the Rules5 by using an external radio
frequency power amplifier as part of his Citizen Band radio
station.
6. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for the violation cited in this
notice is $5,000 (use of unauthorized equipment).6 Section
503(b)(2)(D) of the Act requires us to 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.''7 Considering the entire record and
applying the statutory factors listed above, this case warrants a
$5,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,8 and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,9 Mr.
Joseph S. McCreary is hereby NOTIFIED of his APPARENT LIABILITY
FOR A FORFEITURE in the amount of five thousand dollars ($5,000)
for willful violation of Section 95.411 of the Commission's
Rules.10
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,11 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Mr. Joseph S. McCreary
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
9. Payment of the forfeiture may be made 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.200232700006 and FRN No. 0006-9319-84 referenced in
the letterhead above.
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No.200232700006 and FRN No. 0006-9319-84 referenced in
the letterhead above.
11. 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 (``GAAP'');
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.
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.12
13. IT IS
FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail Return Receipt Requested to Mr.
Joseph S. McCreary at 3305 Bayou Boulevard, Pensacola, Florida,
32503.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director, Tampa Office
Enforcement Bureau
_________________________
1 47 C.F.R § 95.411
2 47 C.F.R § 95.411(a)(1)
3 47 C.F.R § 95.411(c)
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally 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).
5 47 C.F.R. § 95.411
6 47 C.F.R. § 1.80(b)(4)
7 47 U.S.C. § 503(b)(2)(D)
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 95.411
11 47 C.F.R. § 1.80.
12 See 47 C.F.R. § 1.1914.