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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File Number EB-07-TP-095
Richard Ross ) NAL/Acct. No. 200832700011
Titusville, FL ) FRN: 001-73713-29
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2008
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Richard Ross, apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed radio transmitter. We conclude, pursuant to
Section 503(b) of the Act, that Mr. Ross is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On June 4, 2007, in response to complaints of interference, agents
from the Commission's Tampa Office of the Enforcement Bureau ("Tampa
Office") inspected the Citizens Band ("CB") station located at Mr.
Ross' residence. During testing of Mr. Ross' equipment, the agents
determined that two of his CB radio transmitters were non-certificated
transceivers, capable of transmitting on unauthorized frequencies. The
agents also measured the output power for his transmitters and found
them to be operating with seven and eight watts, respectively, output
powers greater than authorized in the Commission's Rules ("Rules").
The agents orally warned Mr. Ross that use of non-certificated or
modified equipment capable of transmitting on unauthorized frequencies
and with greater power than authorized is strictly prohibited by the
Rules and voided his authority to operate the CB station. Mr. Ross
voluntarily surrendered both devices to the agents.
3. On July 10, 2007, in response to additional complaints of
interference, the Tampa office sent an official letter, certified and
regular mail, to Mr. Ross, restricting his hours of operation for his
CB station. Specifically, the letter instructed Mr. Ross not to
operate his CB station from 6 AM EST to 11:59 PM EST. On July 11,
2007, the Tampa office received a response to the official letter in
which Mr. Ross claimed he was now in compliance with the rules.
4. On August 16, 2007, agents from the Tampa Office inspected Mr. Ross'
CB station to confirm that his CB station was in compliance with the
Rules. The agents found that Mr. Ross' CB radio station included a CB
transmitter and two linear amplifiers. The agents measured the power
of the CB transmitter and found it had an average power output of 3.5
watts carrier power. They tested the amplifiers combined power output
and found the devices had the capability to boost the power of the
station to several hundred times the authorized power level. The
agents orally warned Mr. Ross that the use of linear amplifiers or any
device that creates a power greater than the authorized limit is
strictly prohibited by the Rules and voids the authority to operate
the CB station. Mr. Ross voluntarily surrendered both linear
amplifiers to the agents.
5. On November 20, 2007, in response to additional complaints of
interference, at approximately 10:15 A.M., agents from the Tampa
Office located the source of a strong signal on a CB radio channel
using direction finding methods to Mr. Ross' residence. An agent
recognized the voice of the transmissions to be that of Mr. Ross.
6. Still on November 20, 2007, agents from the Tampa Office inspected Mr.
Ross CB station. A wattmeter measurement indicated the power of Mr.
Ross' transmitter during the inspection to be two watts, under the
maximum authorized power under the Rules. The agents then traced the
coaxial cable from the output of the transmitter and found it was
connected to a linear amplifier. Measurements taken with the amplifier
connected to the CB transmitter indicated the amplifier had the
capability to boost the power of the station to several hundred times
the authorized power.
7. Still on November 20, 2007, the agents observed an open notebook. The
notebook showed log entries that indicated that Mr. Ross made several
long distance calls using his CB radio during that morning. The
entries coincided with the times the agents, using direction finding
techniques, traced transmissions originating from Mr. Ross' residence.
The agents orally warned Mr. Ross that the use and possession of the
linear amplifier and operating out of the authorized hours prescribed
on the official letter issued on July 10, 2007 violated the Rules and
voided his authority to operate the CB station.
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) of the Act 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. Section 95.404 of the
Rules states that CB operators do not require an individual license to
operate a CB station because they are authorized by this rule to
operate in accordance with the rules in this subpart. Individuals
operating, pursuant to this provision, however, must operate their CB
stations in accordance with the rules in this subpart.
10. Section 95.409(a) of the Rules states that you must use an FCC
certificated CB transmitter at your CB station and that the use of a
transmitter, which is not FCC certificated voids your authority to
operate the station. Section 95.410 of the Rules states that your CB
station transmitter power output must not exceed ... under any
conditions: 4 watts (carrier power). Use of a transmitter which has
carrier power in excess of that authorized voids your authority to
operate the station. On June 4, 2007, agents from the Tampa Office
determined that Mr. Ross operated his CB station with two
non-certificated transmitters that had a power output of seven and
eight watts (carrier power), respectively. On June 4, 2007, Mr. Ross
was warned that operation of his CB station with a non-certificated
transmitter and with a power level greater than authorized violated
the Rules and voided his authority to operate his CB station.
11. Section 95.411(a) of the Rules states that you may not attach external
radio frequency (RF) power amplifiers to your certificated CB
transmitter in any way. Section 95.411(b) of the Rules states that
there are no exceptions to this rule and that use of a power amplifier
voids your authority to operate the station. The Commission will
presume that you have used a power amplifier if it is in your
possession and if there is other evidence of overpower operation. On
August 16, 2007, and on November 20, 2007, agents from the Tampa
Office observed that Mr. Ross had attached linear amplifiers to his CB
station. Immediately prior to the inspection on November 20, 2007, the
agents observed Mr. Ross' CB station in operation. On August 16, 2007
and November 20, 2007, the agents determined that the amplifiers
attached to Mr. Ross' CB station had the capability to boost the power
of the station to several hundred times the authorized power level. On
August 16, 2007, and November 20, 2007, Mr. Ross was warned that
attaching linear amplifiers to his CB station violated the Rules and
voided his authority to operate his CB station.
12. Section 95.423(a) of the Rules states that if the FCC tells you that
your CB station is causing interference for technical reasons you must
follow all instructions in the official FCC notice. Section 95.423(b)
of the Rules states that you must comply with any restricted hours of
CB station operation which may be included in the official notice. On
July 10, 2007, the Tampa Office sent an official letter, certified and
regular mail, to Mr. Ross. In the official letter Mr. Ross was
instructed not to operate his CB station from 6 AM EST to 11:59 PM
EST. On November 20, 2007, the agents observed Mr. Ross operating his
CB station out of the authorized hours (approximately 10:15 AM)
established in the July 10, 2007 official letter.
13. Because Mr. Ross violated several sections of Part 95, Subpart D of
the Rules, Mr. Ross voided his authority to operate his CB station
pursuant to Section 95.404 of the Rules. Therefore, based on the
evidence before us, we find that on June 4, August 16, and November
20, 2007, Mr. Ross willfully and repeatedly violated Section 301 of
the Act by operating a radio transmitter, his CB station, without
authorization from the Commission.
14. 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)(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. Ross is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
15. 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, Richard Ross, is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000)
for violation of Section 301 of the Act.
16. 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, Richard Ross, SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
18. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
2203 N. Lois Avenue, Suite 1215, Tampa, Florida, 33607 and must
include the NAL/Acct. No. referenced in the caption.
19. 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.
20. 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 Richard Ross at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
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 C.F.R. S: 95.404.
47 C.F.R. S: 95.409(a).
47 C.F.R. S: 95.410.
47 C.F.R. S: 95.411(a).
47 C.F.R. S: 95.411(b).
See 47 C.F.R. S: 95.410.
47 C.F.R. S: 95.423(a)
47 C.F.R. S: 95.423(b)
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission