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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-HU-052
Michael Thomas McCollum ) NAL/Acct. No.: 200732540004
Houston, Texas ) FRN: 0016421752
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 23, 2007
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Michael Thomas McCollum, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act") by operating radio transmission apparatus without a license.
We conclude, pursuant to Section 503(b) of the Act that Mr. McCollum
is apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On December 13, 2006, in response to a complaint of unauthorized
operation on police frequencies, an agent from the Commission's
Houston Office of the Enforcement Bureau ("Houston Office") observed
superfluous comments unrelated to police business on the frequency
465.150 MHz, a frequency assigned to the City of Houston Police
Department. These radio signals were heard by a police radio receiver
at a distance of more than six miles. The agent, using radio direction
finding methods, determined that the source of the signal on 465.150
MHz was originating from a vehicle driven and solely occupied by Mr.
McCollum.
3. On February 12, 2007, an agent from the Houston Office again observed
superfluous comments unrelated to police business on the frequency
465.150 MHz. These radio signals were heard by a police radio receiver
at a distance of more than six miles. The agent, using radio direction
finding methods, determined that the source of the signal on 465.150
MHz was originating from a vehicle driven and solely occupied by Mr.
McCollum. An officer of the Houston Police Department stopped the
vehicle occupied by Mr. McCollum, and a search of the vehicle found an
ICOM handheld radio programmed to transmit signals on the frequency
465.150 MHz. The ICOM radio was manufactured with two power settings,
5 watts and 0.5 watts and was not certified for use as a Part 15
device.
4. Based on the agents' experience with this type of radio transmitting
equipment and the distance over which the signals were heard, the
agents determined that the signals transmitted on December 13, 2006,
and February 12, 2007 exceeded the limits for operation under Part 15
of the Commission's Rules ("Rules") and therefore require a license.
The frequency 465.150 is allocated to the Public Safety Radio Pool,
and only territories, possessions, states, counties, towns, or other
governmental agencies are eligible to hold authorizations in the
Public Safety Pool. As a non-governmental entity, Mr. McCollum is not
eligible to receive a license to operate on a frequency in the Public
Safety Pool. A search of the Commission's records confirmed that Mr.
McCollum did not have a license to operate radio transmitting
apparatus on the frequency 465.150 MHz.
III. DISCUSSION
5. 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.
6. 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 December 13, 2006, and
February 12, 2007, agents from the Houston Office determined that Mr.
McCollum operated a radio transmitter on the frequency 465.150 MHz
from a vehicle, driven and solely occupied by him, without an
authorization from the Commission.
7. Based on the evidence before us, we find that Mr. McCollum apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission apparatus without authorization from the
Commission.
8. 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 operation without an instrument of
authority 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)(E) 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 of the Rules,
and the statutory factors to the instant case, we conclude that Mr.
McCollum is apparently liable for 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 amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Michael Thomas McCollum 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.
10. 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, Michael Thomas McCollum
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 must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road, #362, Houston, Texas, 77065 and must include the
NAL/Acct. No. referenced in the caption.
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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
15. 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 Michael Thomas McCollum at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
At either power setting, use of the ICOM radio as manufactured, would
exceed Part 15 limits. Moreover, the ICOM radio did not bear a label that
it complies with Part 15 of the Commission's Rules. See 47 C.F.R. S 15.19.
Section 15.209 of the Rules provides that non-licensed broadcasting
between 216-960 MHz band is permitted only if the field strength of the
transmission does not exceed 200 uV/m at three meters. 47 C.F.R. 15.209.
Devices compliant with Part 15 typically have a range of less than one
mile.
See 47 C.F.R. S 90.20(c)(3).
See 47 C.F.R. S 90.20(a).
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)(E).
47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
^8 See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission