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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mr. Jerry Smith ) File No. EB-00-PA-414
125 Commonwealth Ave. ) NAL/Acct. No. 200132400001
Claymont, Delaware )
MEMORANDUM OPINION AND ORDER
Adopted: June 19, 2001 Released: June 21,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
grant in part and deny in part the Petition for
Reconsideration (``Petition'') filed on May 21, 2001 by Jerry
Smith (``Mr. Smith''). Mr. Smith seeks reconsideration of a
Forfeiture Order,1 in which the Chief, Enforcement Bureau,
issued a monetary forfeiture in the amount of thirteen
thousand five hundred dollars ($13,500) for willful and
repeated violations of Sections 95.409(a), 95.410(a) and
95.411(a)(1) of the Commission's Rules (``Rules'').2 The
noted violations involve Mr. Smith's operation of a Citizens
Band (``CB'') Radio Station with a non-type-accepted
transmitter, with a transmitter output power greater than four
watts carrier power in the AM (A3) mode, and with an external
RF power amplifier. For the reasons discussed below, we
reduce the forfeiture amount to three thousand dollars
2. In response to a complaint concerning interference to
electronic equipment, the Philadelphia, Pennsylvania Field
Office (``Field Office'') inspected the CB Radio Station
operated by Mr. Smith. The inspection revealed the
aforementioned violations. On January 12, 2000, the Field
Office issued a Notice of Violation (``NOV'') for the
violations. On January 21, 2000, the Field Office received a
response to the NOV from Mr. Smith's wife, Lisa Marie Smith
(``Mrs. Smith''). The response indicated that the violations
had been corrected. On April 13, 2000, the Field Office
received notice from the Commission's Gettysburg, Pennsylvania
office that it received a referral from Senator William V.
Roth concerning interference to home electronics caused by Mr.
Smith's operation of the CB station.
3. On April 28, 2000, the Chief, Enforcement Bureau,
responded to Senator Roth indicating that the Field Office had
performed an inspection of Mr. Smith's CB station, noted a
number of violations, and issued an NOV. The letter further
noted that Field Office had received a response to the NOV
indicating that the violations had been corrected. Finally,
the letter stated that any further problems should be reported
to the Bureau's Technical and Public Safety Division
(``TPSD''). On October 3, 2000, the Field Office received a
referral from TPSD concerning interference to home electronics
apparently due to Mr. Smith's operation of a CB station. On
October 15, 2000, an agent from the Field Office monitored Mr.
Smith's CB station from a location within a block of the
station. On November 1, 2000, agents from the Field Office
inspected Mr. Smith's CB station and the inspection revealed
the aforementioned violations. On January 8, 2001, the Field
Office issued a Notice of Apparent Liability for Forfeiture,3
for $13,500 to Mr. Smith for the noted violations. On April
20, 2001, the Chief, Enforcement Bureau, issued a Forfeiture
Order which affirmed the $13,500 forfeiture issued to Mr.
Smith in the NAL. The Forfeiture Order stated that Mr. Smith
had not filed a response, and we affirmed the forfeiture based
on the information before us.
4. In his Petition, Mr. Smith does not dispute our finding
that he operated a CB radio station in violation of the
Commission's Rules. He disagrees, however, with the statement
in the Forfeiture Order that he did not respond to the NAL.
Mr. Smith claims that Mrs. Smith prepared and forwarded a
response on his behalf to the Commission's headquarters in
Washington, DC. According to the Petition, Mrs. Smith did not
send the response by certified mail, nor did she retain a copy
of her letter. Nonetheless, argues Mr. Smith, the Enforcement
Bureau did receive the response because the Enforcement Bureau
subsequently requested that he furnish additional information
5. Mr. Smith asserts, however, that the basis for his
Petition is the Smiths' ``desperate'' financial situation,
which compels them to seek remission of the forfeiture. In
support of his argument of financial hardship, Mr. Smith
includes various financial documents.
6. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503(b) of
the Act,4 Section 1.80 of the Rules,5 and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). Section
503(b) of the Act requires that the Commission 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.6
7. Mr. Smith's arguments do not justify cancellation of
the entire forfeiture amount on the basis of financial
hardship. We conclude however, that reduction of the proposed
forfeiture amount to $3,000 is appropriate. After considering
the financial information submitted, we find that requiring
Mr. Smith to pay a $13,500 forfeiture would impose a financial
hardship and, consequently, we lower the proposed monetary
forfeiture to $3,000. With respect to Mr. Smith's contention
that Mrs. Smith submitted a response to the Forfeiture Order,
the Commission has no record of such a filing and Mr. Smith
presents no evidence that the Commission ever received the
filing. Similarly, we are unable to locate any record of a
request for additional information, nor would such a request
be routinely made. Nevertheless, we have addressed herein the
arguments Mr. Smith raised in his Petition.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
1.106 of the Rules, the Petition for Reconsideration of the
Forfeiture Order in this proceeding is hereby GRANTED IN PART
AND DENIED IN PART.
9. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act7 and Section 1.80(f) of the Rules,8 Mr. Jerry
Smith, shall, within 30 days of the release of this Memorandum
Opinion and Order, pay the amount of $3,000 for violating
Sections 95.409(a), 95.410(a) and 95.411(a)(1) of the Rules.
If the forfeiture is not paid within the specified period, the
case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.9 Payment
may be made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the NAL/Acct.
No. 200132400001. Requests for full payment under an
installment plan should be sent to: Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
10. IT IS FURTHER ORDERED that, a copy of this Memorandum
Opinion and Order shall be sent by certified mail, return
receipt requested, to counsel for Mr. Jerry Smith, Lewis H.
Goldman, Esq., 45 Dudley Court, Bethesda, Maryland, 20814, and
to Mr. Jerry Smith, 125 Commonwealth Avenue, Claymont,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Forfeiture Order, NAL/Acct. No. 200132400001 (Enf. Bur.,
released April 20, 2001) (``Forfeiture Order'').
2 47 C.F.R. §§ 95.409(a), 95.410(a) and 95.411(a)(1).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132400001 (Enf. Bur., Philadelphia Office, released January 8,
4 47 U.S.C. § 503(b)(2)(D).
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. § 1.80(f)
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.