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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-CF-712
)
Mark A. Clay ) NAL/Acct. No.
200332340003
Huntington, West Virginia )
) FRN: 0005-3791-77
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 29,
2003
By the District Director, Columbia Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Mark A. Clay (``Clay'') has apparently
violated Section 301 of the Communications Act of 1934, as
amended (``Act'').1 Clay operated an FM broadcast station on the
frequency 98.1 MHz at 5666 Lynn Creek Road, Huntington, West
Virginia without a license. We conclude that Clay is apparently
liable for forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
·
2. On May 30, 2002, an agent from the Commission's
Columbia Office, operating an FCC direction-finding vehicle in
the Huntington, West Virginia, area monitored an unidentified FM
broadcast station on the frequency 98.1 MHz. Using direction-
finding equipment and techniques, the agent determined that the
source of the signal on 98.1 MHz was an antenna near a trailer at
5666 Lynn Creek Road in Huntington, West Virginia. While near
the station, the agent measured the field strength of the signal.
The broadcast station exceeded the permissible level for a non-
licensed radio transmitter by 1,431 times. Accordingly, a
license was required for the operation of the broadcast station.
Based on the Commission's records, no license had been issued for
the operation of any FM broadcast station at this location.
3. Later in the day on May 30, 2002, while the station
continued operation, the agent inspected the radio station. The
agent found Clay at the station in control of the transmitter.
Clay admitted to operating the station without a license. Clay
informed the agent that he held an amateur radio station license
N8QYK. The agent warned Clay concerning the unlicensed FM
broadcast operation. Clay shut the transmitter off just after
the agent's departure.
4. On June 25, 2002, the Columbia Office sent, via
certified mail, a letter addressed to Clay, 5666 Lynn Creek Road,
Huntington, West Virginia 25704. The letter warned Clay that
operation of the unlicensed radio station on the frequency 98.1
MHz violated Section 301 of the Act and directed the Clay to
terminate operation of the unlicensed station immediately. The
letter requested Clay to submit a written response within 10 days
of receipt of the letter.
5. By letter dated July 2, 2002, Clay submitted a response
to the Columbia Office. He acknowledged that he operated the
broadcast station at 5666 Lynn Creek Road, Huntington, West
Virginia, which transmitted on the frequency 98.1 MHz. He stated
that he had ceased operation of the station after the FCC
inspection on May 30, 2002.
6. On November 13, 2002, a Commission agent observed radio
broadcasting on 98.1 MHz, and positively identified the source of
the unauthorized transmissions as 5666 Lynn Creek Road,
Huntington, West Virginia. While near the station, the agent
measured the field strength of the signal. The broadcast station
exceeded the permissible level for a non-licensed radio
transmitter by 7,403 times. There was no evidence of a Commission
authorization for this operation in Huntington, West Virginia.
7. On November 14, 2002, Commission agents observed radio
broadcasting on 98.1 MHz and positively identified the source of
the unauthorized transmissions as 5666 Lynn Creek Road,
Huntington, West Virginia. While near the station, the agents
measured the field strength of the signal. The broadcast station
exceeded the permissible level for a non-licensed radio
transmitter by 7,986 times. There was no evidence of a
Commission authorization for this operation in Huntington, West
Virginia.
8. On November 14, 2002, Commission agents inspected the
radio station. Clay was at the station and in control of the
transmitter. During the inspection, Clay admitted to operating
the station, and knowing that the transmitted signal level was
far in excess of that permitted for operation with no Commission
authorization.
III. DISCUSSION
9. Section 301 of the Act prohibits any person from using
or operating any apparatus for the transmission of energy or
communications or signals by radio except under and in accordance
with the Act and with a license in that behalf granted under the
provisions of the Act. On May 30, 2002, November 13, 2002, and
November 14, 2002, Clay operated an FM broadcast station on the
frequency 98.1 MHz at 5666 Lynn Creek Road, Huntington, West
Virginia, without a license. Clay would not have been required
to obtain a license to operate the stations if the signal
strengths did not exceed the FCC limits specified in Section
15.239 of the Rules.2 However, on May 30, 2002, November 13,
2002, and November 14, 2002, the agents determined that the
signal strength of the broadcast station exceeded the FCC limits
by at least 1,431 times.
10. By letter dated June 25, 2002, the Columbia Office
warned Clay that his operation of a broadcast station without a
license was in violation of Section 301 of the Act. Commission
agents informed Clay that his station exceeded the limits
specified in Section 15.239 of the Rules, and he did not have a
license to operate the station. Further, Clay holds an FCC
amateur radio service license. Therefore, Mark A. Clay was aware
prior to November 13, 2002, and November 14, 2002 of his
responsibility to properly measure, adjust and maintain his
broadcast station to avoid subsequent violations of Section 301
of the Act.
11. Based on the evidence before us, we find that Clay
apparently willfully3 and repeatedly4 violated Section 301 of the
Act. The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement'')5, sets the base
forfeiture amount for unlicensed operation at $10,000. In
assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Act,6 which include 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. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a ten thousand dollar ($10,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7 and Sections 0.111, 0.311 and 1.80 of the
Rules8 Clay is hereby NOTIFIED of his APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willfully and repeatedly violating Section 301 of the Act.
13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Clay 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 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. 200332340003, and FRN 0005-3791-77.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332340003.
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 (``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.
17. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
18. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Mark A. Clay, 5666 Lynn Creek Road,
Huntington, West Virginia 25704.
FEDERAL COMMUNICATIONS
COMMISSION
Charles C. Magin
District Director
Columbia Office
Attachment A: Condensed List of Small Entities
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 15.239
3 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).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
5 47 C.F.R. § 1.80.
6
47 U.S.C § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111 and 0.311.
9 See 47 C.F.R. § 1.1914.