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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File Number EB-01-DL-512
David Edwin Merrell )
) NAL/Acct.No. 200132500002
Wichita Falls, Texas )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 10, 2001
By the Enforcement Bureau, Dallas Office:
I. INTRODUCTION
1.In this Notice of Apparent Liability for Forfeiture, we
find that David Edwin Merrell apparently violated Section 301 of
the Communications Act of 1934, as amended (?Act?),1 by operating
an unlicensed radio station without Commission authorization. We
conclude that David Edwin Merrell is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. In April and May, 2001, the FCC received numerous
complaints stating that an unidentified station operating on 7238
KHz and 7235 KHz had caused intentional interference to
authorized communications. The FCC's high frequency direction
finding network determined the interfering station was located in
the Wichita Falls, Texas area.
3.On June 26, 2001, agents from the FCC's Dallas Office
monitored an unidentified station operating on 7220 kHz in the
40-meter amateur radio band. On June 26, 2001 and June 27, 2001
the agents determined that the transmissions on 7220 kHz in the
Amateur Band emanated from the residence at 704 Ross Avenue. The
station did not identify and transmitted only one-way broadcasts.
4.On June 27, 2001, agents inspected the station at 704
Ross Avenue. David Edwin Merrell, resident at that address,
admitted to the transmissions and stated that he did not have a
station or operator license. Mr. Merrell stated that the
transmissions were ?something to do? and were made ?to get
attention.? Mr. Merrell further stated that he was not interested
in talking to people but only in making one-way transmissions.
5.A subsequent search of FCC's records confirmed that Mr.
Merrell was not licensed by the Commission to operate on the
frequency 7220 kHz.
III. DISCUSSION
6.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.1
7.Based on the evidence before us, we find that on June 26,
2001, David Edwin Merrell repeatedly2 and willfully3 violated
Section 301 of the Act by operating radio transmission apparatus
without a license.
8.Pursuant to Section 1.80(b)(4) of the Commission's
Rules,4 the base forfeiture amount for the violation cited in
this notice is $10,000. Section 503(b)(2)(D) of the Act5 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.? Considering
the entire record and applying the statutory factors listed
above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
9.Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended6, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules7, David
Edwin Merrell is hereby NOTIFIED of his APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willful violation of Section 301 of the Communications Act of
1934, as amended.8
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules9, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, David Edwin Merrell 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 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. referenced in the letterhead above.
12. 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. referenced in the letterhead above.
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 (?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.
14. 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. 20554.10
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to David Edwin Merrell at 704 Ross Avenue, Wichita
Falls, Texas 76306.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director, Dallas Office,
Enforcement Bureau
_________________________
1 47 U.S.C. § 301
2 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally 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.?
3 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).
4 47 C.F.R. § 1.80(b)(4)
5 47 U.S.C. § 503 (b)(2)(D)
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 47 U.S.C. § 301
9 47 C.F.R. § 1.80.
10 See 47 C.F.R. § 1.1914.