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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-ST-027
William W. Scrugham ) NAL/Acct. No. 200632980003
Kamiah, ID ) FRN 0005547815
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 27, 2006
By the District Director, Seattle District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that William W. Scrugham ("Scrugham"), apparently willfully and
repeatedly violated Section 301 of the Communications Act of 1934, as
amended ("Act"), by operating an unlicensed radio transmitter on 100.3
MHz in Kamiah, Idaho. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Scrugham is
apparently liable for forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On January 20, 2006, the Enforcement Bureau's Seattle Office received
information concerning an unauthorized broadcast station operating on
100.3 MHz in Kamiah, Idaho. A search of the Commission's databases
revealed no authorization for a broadcast station to operate on 100.3
MHz in Kamiah, Idaho.
3. On January 31, 2006, Seattle agents monitored broadcast transmissions
on 100.3 MHz in Kamiah, Idaho. The agents, using direction finding
techniques, located the transmissions on 100.3 MHz to the south end of
Kamiah.
4. On February 1, 2006, Seattle agents again monitored broadcast
transmissions on 100.3 MHz in Kamiah, Idaho, and, using direction
finding techniques, located the source of the transmissions to the
residence at RR 1, Box 476, Kamiah, Idaho. The agents took field
strength measurements and determined that the signals being broadcast
exceeded the limits for operation under Part 15 of the Commission's
Rules ("Rules") and therefore required a license. The Seattle Office
issued a Notice of Unlicensed Operation ("Notice") by Certified Mail
to Carol Kurtz ("Kurtz"), the owner of the property, according to
public records.
5. On February 3, 2006, agents from the Commission's Seattle Office again
monitored broadcast transmissions on 100.3 MHz in Kamiah, Idaho, and,
using direction finding techniques, located broadcast transmissions on
100.3 MHz to the private residence at RR 1, Box 476, Kamiah, Idaho.
The agents made field strength measurements and determined that the
signals being broadcast were slightly higher from their previous
measurements. The measurements indicated that the station still
exceeded the limits for operation under Part 15 of the Rules and,
therefore, still required a license.
6. On February 13, 2006, the Seattle office received a response
("Response") to the Notice issued to Kurtz. The Response was from
William Scrugham, stating that he, and not Kurtz, was the operator of
the transmitting equipment at the site in question. In his Response,
Scrugham argued that the Commission, as a federal agency, lacks
authority "to control intrastate radio communication . . . ." Scrugham
also indicated that he intended to continue to operate the station and
that the station did not require a license.
7. On March 1, 2006, the Seattle Office requested that the Idaho County
Sheriff verify that the station was still broadcasting on 100.3 MHz in
Kamiah. At approximately 9:45 a.m., the Idaho County Sheriff's office
recorded approximately 1.5 minutes of broadcast radio transmissions on
100.3 MHz, approximately seven miles from RR 1, Box 476, Kamiah,
Idaho, the site of Scrugham's transmitter. At approximately 5:31 p.m.,
the Sheriff's Office again recorded, for approximately one minute,
broadcast radio transmissions on 100.3 MHz, approximately four miles
from the unlicensed transmitter.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. In particular, Section 301
states that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio (a) from
one place in any State, Territory, or possession of the United States
or in the District of Columbia to another place in the same State,
Territory, possession, or District; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." On January 31, 2006, February
1, 2006, February 3, 2006, and March 1, 2006, Scrugham operated radio
transmitting equipment at Rural Route 1, Box 476, Kamiah, Idaho, on
100.3 MHz without the required Commission authorization. Despite
Scrugham's allegations to the contrary, Congress, in Section 301,
clearly vested the Commission with authority to regulate intrastate
radio transmissions, as detailed above.
10. Scrugham received notice that his operation of the broadcast station
on 100.3 MHz in Kamiah, Idaho, was unauthorized, along with a complete
copy of Section 301. He acknowledged operation of the station in his
Response to the Seattle Office's Notice and indicated that he intended
to continue the operation of the station. Therefore, Scrugham's
violation is willful. The violation occurred on more than one day,
therefore, it is repeated. Based on the evidence before us, we find
Scrugham apparently willfully and repeatedly violated Section 301 of
the Act by operating a radio transmission apparatus without a license
on 100.3 MHz in Kamiah, Idaho.
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"), and Section 1.80 of the Rules, the
base forfeiture amount for operating without an instrument of
authorization is $10,000. 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 violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, we find that Scrugham is apparently liable for
a forfeiture of $10,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, William W. Scrugham is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violations of Section 301 of the Act.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, William W. Scrugham 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 must be made by check or similar instrument,
payable to the order of the Federal Communications Commission.\001 The
payment must include the NAL/Acct. No. and FRN No. referenced
above.\001 Payment by\001check or money order may be mailed to Federal
Communications Commission, P.O. Box\001358340,\001Pittsburgh, PA
15251-8340.\001 Payment by overnight mail may be sent to\001Mellon
Bank\001/LB\001358340,\001500 Ross Street, Room 1540670, Pittsburgh,
PA 15251.\001\001 Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Seattle District
Office, 11410 NE 122^nd Way, Suite 312, Kirkland, WA 98034-6927, and
must include the NAL/Acct. No. referenced in the caption.
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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to William W. Scrugham.
FEDERAL COMMUNICATIONS COMMISSION
Steven Houser
Acting District Director
Seattle District Office
Western Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S 15.239.
On February 1, 2006, the measurements indicated that the signal was 6683
times greater than the maximum permissible level for a non-licensed Part
15 transmitter. Devices compliant with Part 15 typically have a range of
less than one mile.
The measurements made on February 3, 2006, indicated that the signal was
6993 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter.
As a basis for this claim, Scrugham attached to his Response a 1997
Commission form letter sent in response to an inquiry from an individual,
not a party to this action, that purports to disavow federal jurisdiction
over all intrastate radio transmissions. The Commission has since
corrected the inaccuracies of form letters of this type by releasing
follow-up letters, and has reiterated that "Section 301 explicitly sets
forth the Commission's jurisdiction over all radio transmissions, both
interstate and intrastate." Joseph Frank Ptak, 14 FCC Rcd 9317, 9320
(1999).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under 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."
47 U.S.C. S 301.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301, 47 C.F.R. SS 0.111, 0.311, 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission