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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Mike Morrison ) File No.
EB-00-AT-1083
3880 Nowlin Road )
Kennesaw, GA 30144 ) NAL/Acct. No.
X3248005
FORFEITURE ORDER
Adopted: January 25, 2001 Released: January 29,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) against Mike Morrison, d/b/a Morrison Sales Company
(``Morrison'') for violating Section 302 of the Communications
Act of 1934, as amended (``Act'')1 by marketing non-compliant
devices for use in the FM broadcast band. The noted violations
involve the sale of at least 12 FM transmitters that exceeded the
field strength limitations prescribed by Section 15.239 of the
Commission's Rules (``the Rules'') 2 for non-licensed, low-
powered transmitters.
2. On October 11, 2000, the District Director of the
Atlanta, Georgia, Field Office (``Atlanta Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') in the
amount of two thousand dollars ($2,000).3 Morrison filed his
response on November 1, 2000.
II. BACKGROUND
3. On September 28, 1999, agents from the Atlanta Office
began an investigation into the marketing of low power FM
transmitters following news reports about such transmitters. The
agents found eleven SKY-2000 FM transmitters that had been
distributed by Skywave Electronics (``Skywave''), Rockford,
Illinois, and sold by Morrison. Field strength measurements
taken during the investigation showed that the eleven
transmitters exceeded the level authorized by Section 15.239 of
the Rules.
4. On September 28, 1999, during an inspection of a SKY-
2000 FM transmitter and on October 15, 1999, during an office
interview, the agents verbally warned Morrison against the
marketing of noncompliant low power devices. On November 25,
1999, the Atlanta Office issued Morrison an Official Notice of
Violation for violation of Section 302 of the Act (marketing
noncompliant devices). In his response to the NOV, Morrison
asserted his intention to comply with Section 302.
5. On August 16, 2000, an agent from the Atlanta Office
inspected a SKY-2000 FM transmitter operating at the Chick-fil-A
restaurant in Marietta, Georgia (``Chick-fil-A''), and found that
the transmitter's field strength exceeded the level authorized by
Section 15.239 of the Rules for non-licensed low-powered
transmitters. The owner of Chick-fil-A stated that he acquired
the SKY-2000 FM transmitter from Morrison in May 2000.
6. In his response to the NAL, Morrison asserts that he
``gave'' the restaurant an ``older'' SKY-2000 FM transmitter and
charged ``only for production work . . . on a monthly basis.''
Morrison also asserts that does not have the apparatus or the
technical ability to determine whether the devices he markets are
compliant and contends that he should be able to rely on
Skywave's representation that its devices are compliant.
III. DISCUSSION
7. As the NAL explicitly states, the Atlanta Office
assessed the proposed forfeiture amount in this case in
accordance with Section 503 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) (``Policy Statement''). Section 503(b) of the
Act requires that, in examining Morrison's response, 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
8. Section 302 of the Act provides, in pertinent part,
that: ``No person shall . . . sell . . . devices . . . which
fail to comply with the regulations promulgated pursuant to this
section.'' Section 15.239 of the Rules7 specifies the
permissible field strength level for non-licensed low-powered
transmitters which operate in the 88-108 MHz FM broadcast band.
9. It is undisputed that Morrison transferred a SKY-2000
FM transmitter which did not comply with the field strength level
specified by Section 15.329 of the Rules to Chick-fil-A. We
reject Morrison's claim that he ``gave'' rather than sold that
transmitter to Chick-fil-A. First, Morrison is engaged in a for-
profit business and clearly received a pecuniary benefit from
transferring the SKY-2000 FM transmitter to Chick-fil-A.
Furthermore, the owner of Chick-fil-A stated to a Commission
agent that he acquired the SKY-2000 FM transmitter as part of a
package arrangement for which he paid approximately $900 and
which also included monthly programming ``updates'' for one year
at no additional cost ($25 per month after one year). The
transaction between Morrison and Chick-fil-A clearly constituted
a sale.
10. It is Morrison's responsibility to ensure that the
radio frequency devices he sells are compliant with the field
strength level specified by the Rules. At the time Morrison sold
the SKY-2000 FM transmitter to Chick-fil-A, he knew that Skywave
had distributed eleven noncompliant SKY-2000 FM transmitters
which Skywave claimed were compliant. Morrison, therefore,
should have known that he could not rely on Skywave's
representations of compliance. It was essential for Morrison to
independently determine whether the SKY-2000 FM transmitter was
compliant before selling it to Chick-fil-A but he did not do so.
Since Morrison could have engaged a contractor to make an
independent determination, his assertion that he lacked the
necessary apparatus and the technical ability cannot excuse his
failure to make an independent determination.
11. We conclude that there is no basis for rescission or
mitigation of the proposed monetary forfeiture and that $2,000 is
the proper amount.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,9 Mike Morrison IS LIABLE FOR A MONETARY FORFEITURE in
the amount $2,000 for willfully and repeatedly violating the
provisions of Section 302 of the Act, which prohibits the sale of
noncompliant radio frequency devices.
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules10 within
30 days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.11 Payment shall 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. referenced above. Requests
for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.12
14. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by Certified Mail Return Receipt Requested to Mike
Morrison at 3880 Nowlin Road, Kennesaw, GA 30144.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 302a.
2 47 C.F.R. § 15.239.
3 Notice of Apparent Liability for Forfeiture, NAL/No.
X3248003 (Enf. Bur., Atlanta Office, released May 9, 2000).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 15.239.
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.