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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB DOCKET NO. 01-61
)
LESLIE D. BREWER )
)
Licensee of Amateur Radio Station and )
General Class Operator License KC4HAZ )
)
Licensee of Station KAE1170 in the General )
Mobile Radio Service )
ORDER TO SHOW CAUSE, NOTICE OF ORDER OF SUSPENSION, NOTICE
OF OPPORTUNITY FOR HEARING, AND NOTICE OF APPARENT LIABILITY
FOR A FORFEITURE
Adopted: February 22, 2001 Released:
March 5, 2001
By the Commission:
I. INTRODUCTION
1. In this Order, we suspend the above-captioned Amateur
radio operator license held by Leslie D. Brewer and commence
a hearing proceeding before an FCC Administrative Law Judge
to determine, ultimately, whether Mr. Brewer's captioned
station licenses should be revoked. As discussed below, the
record before us indicates that Mr. Brewer has apparently
willfully and repeatedly engaged in unlawful Commission-
related activities, including the operation of unlicensed
(i.e., ``pirate'') FM radio broadcast facilities in the
Tampa, Florida, area. Mr. Brewer's apparent continuing
course of misconduct raises questions as to whether Mr.
Brewer possesses the requisite character qualifications to
be and remain a Commission licensee.
II. BACKGROUND
2. Mr. Brewer is the licensee of Amateur radio station and
General class operator license KC4HAZ. He also is the
licensee of Station KAE1170 in the General Mobile Radio
Service (``GMRS''). Mr. Brewer owns an electronics shop in
Tampa, Florida, d/b/a L.D. Brewer 2-Way Radio. L.D. Brewer
2-Way Radio sells and assembles radio equipment.
3. On January 10, 1996, the Commission's Tampa field
office received an anonymous inquiry about a pirate FM
station broadcasting on 102.1 MHz in the Tampa area. In
response, Commission personnel monitored the station the
next day and traced the unlicensed transmissions to Mr.
Brewer's residence at 6122 Liberty Avenue, Tampa, Florida.
The following day, Commission personnel inspected the
facilities with Mr. Brewer's permission and warned him that
it is a violation of Section 301 of the Communications Act
of 1934, as amended,1 to transmit on the FM band absent a
license with other than certain low power devices.2 In a
letter directed to Mr. Brewer on January 17, 1996, the
Commission staff repeated its warning about unlicensed
operations. On January 19, 1996, Mr. Brewer responded in
writing. Mr. Brewer stated that ``[a]ny further operation
of [the] station will be within the guidelines for low-power
operation, set out in part 15.'' 3
4. Thereafter, on February 16, 1996, Commission personnel
conducted a follow-up investigation of Mr. Brewer's
transmissions. The monitoring revealed that Mr. Brewer was
again operating his unlicensed FM station. As a result, on
April 3, 1996, the Commission staff issued a Notice of
Apparent Liability to Mr. Brewer in the amount of $1,000 for
broadcasting without a license, in apparent willful
violation of Section 301 of the Act. In response, Mr.
Brewer challenged, among other things, the accuracy of field
strength measurements taken of his transmissions and the
competency of the Commission engineers who had conducted the
measurements. On June 19, 1996, the Commission staff
released a Forfeiture Order. The Forfeiture Order rejected
Mr. Brewer's claims, concluded that Mr. Brewer had engaged
in the unauthorized operation of an FM broadcast station in
violation of Section 301 of the Act, and directed Mr. Brewer
to forfeit the sum of $1,000. The Commission subsequently
denied Mr. Brewer's application for review of the Forfeiture
Order.4
5. Further monitoring revealed that Mr. Brewer continued
his pirate operations throughout 1996 and into 1997. During
this period, the Commission received written complaints of
interference from Paxson Tampa License Limited Partnership
(``Paxson''), licensee of Station WHPT(FM), 102.5 MHz,
Sarasota, Florida. On June 19, 1997, the Chief, Audio
Services Division, Mass Media Bureau, issued a letter
denying a May 10, 1996, request by Mr. Brewer for Special
Temporary Authority to operate an FM broadcast station on
102.1 MHz in the Tampa area, and returning as unacceptable a
November 8, 1996, application by Mr. Brewer for a
construction permit for a new Class A noncommercial
educational broadcast station on 102.1 MHz in the Tampa
area.5 Notwithstanding these actions, Mr. Brewer continued
to operate his FM station without authority. As a
consequence, on November 19, 1997, Commission personnel,
with the assistance of Deputies from the U.S. Marshals
Service, served and executed an in rem seizure warrant upon
Mr. Brewer and confiscated his FM transmission equipment.6
6. For two years following the in rem seizure of his FM
transmitting equipment, Mr. Brewer apparently refrained from
engaging in further pirate operations. During this time, on
September 14, 1998, Mr. Brewer filed an application for an
experimental FM station with the Commission's Office of
Engineering and Technology.7 The staff dismissed the
application on September 25, 1998, and returned it to Mr.
Brewer because it had been filed on an incorrect form.
7. On November 8, 1999, Mr. Brewer again requested Special
Temporary Authority to operate an FM broadcast station on
102.1 MHz in the Tampa area, either as part of the ``regular
broadcast service'' or as an ``experimental broadcast
service.'' While this request was pending,8 and on the
second anniversary of the in rem seizure (November 19,
1999), Mr. Brewer resumed his pirate broadcasts on 102.1 MHz
in apparent willful and repeated violation of Section 301 of
the Act.
8. Based on monitoring conducted on November 19 and 23,
1999, Commission personnel confirmed that the source of
unlicensed transmissions on 102.1 MHz was a warehouse
located in a commercial shopping mall at the Shady Oaks
Plaza, 14920 N. Florida Avenue, Tampa, Florida. A tenant
list provided by the Ross Realty Group, owners of Shady Oaks
Plaza, indicated that the warehouse was leased to an
individual by the name of Karen Walsh. Ross Realty Group
provided copies of cancelled checks showing that Mr. Brewer
had paid for the warehouse space from which the unlicensed
broadcasts were emanating.
9. Subsequently, on December 2, 1999, Commission personnel
again monitored the unlicensed transmissions from the same
warehouse. On that same date, Commission personnel confirmed
that Mr. Brewer was employing an unlicensed studio-to-
transmitter link (``STL'') on 950.0925 MHz to send audio
programming and/or control signals from his residence at
6122 Liberty Avenue, Tampa, Florida, to the warehouse, in
apparent violation of Section 301 of the Act. Further
monitoring by Commission personnel on December 3, 10, and
15, 1999, and March 11, 2000, confirmed continuing operation
of both the unlicensed FM station on 102.1 MHz from the
Shady Oaks Plaza warehouse and the unlicensed STL on
950.0925 MHz from Mr. Brewer's Liberty Avenue residence.
10. In addition to operating pirate FM and STL facilities,
Mr. Brewer also has engaged in marketing unauthorized FM
broadcast transmitting equipment, in apparent willful
violation of Sections 2.803(a)(1) and 15.201(b) of the
Commission's rules, 47 C.F.R. §§ 2.803(a)(1) and 15.201(b).9
Thus, in early 1997, it came to the Commission's attention
that Mr. Brewer, through his business, L.D. Brewer 2-Way
Radio, was marketing unauthorized radio frequency devices.
As a result, on July 18, 1997, the Commission staff directed
a warning letter to Mr. Brewer to refrain from such
activities. Mr. Brewer responded on July 21, 1997, denying
he was engaged in any unlawful actions.
11. Thereafter, on August 6, 1998, an agent from the
Commission's Tampa field office, posing as a member of the
general public, sent an e-mail to L.D. Brewer 2-Way Radio
requesting information about purchasing a 20-watt
transmitter that would operate in the FM band. Mr. Brewer
responded via e-mail with a price and instructions for
purchasing such equipment. On August 25, 1998, the Tampa
field office submitted a money order in the amount of
$560.00 for the equipment to L.D. Brewer 2-Way Radio.
Subsequently, on September 28, 1998, the Tampa field office
received a fully assembled 20-watt FM broadcast transmitter
from L.D. Brewer 2-Way Radio. There was no indication that
the transmitter was authorized by the Commission, and no FCC
identifier number was affixed to the equipment. On August
5, 1999, the Commission staff issued a Notice of Apparent
Liability against Mr. Brewer in the amount of $10,000 for
selling an unauthorized radio frequency device, in apparent
violation of Sections 2.803(a)(1) and 15.201(b) of the
Commission's rules. The Chief, Enforcement Bureau,
subsequently rejected the arguments in Mr. Brewer's written
response and issued a Forfeiture Order in the same amount.10
III. DISCUSSION
·
12. The Commission's Character Policy Statement11 provides
that violations of the Communications Act or the
Commission's rules are matters which are predictive of
licensee behavior and directly relevant to the Commission's
regulatory activities. The Character Policy Statement is
applicable to Amateur and other wireless radio licensees.12
13. Section 301 of the Act provides in pertinent part that
no person shall operate any apparatus for the transmission
of communications by radio from one place in any state to
another place in the same state without a license from this
Commission.13 The requirement for a license in order to
broadcast has been upheld by the United States Supreme Court
as a proper exercise of the constitutional power of
Congress.14
14. Since 1996, Mr. Brewer has been warned to refrain from
operating unlicensed FM broadcast facilities; he has been
the subject of a Forfeiture Order in the amount of $1,000
for operating an unlicensed FM broadcast facility, in
willful and repeated violation of Section 301 of the Act; he
was the subject of an in rem seizure of equipment used in
operating an unlicensed FM broadcast station; and he was the
subject of another Forfeiture Order in the amount of $10,000
for marketing unauthorized FM broadcast transmitting
equipment, in willful violation of Sections 2.803(a)(1) and
15.201(b) of the Commission's rules. Notwithstanding these
warnings and sanctions, the evidence before us indicates
that Mr. Brewer continues to engage in the operation of
unlicensed broadcast and STL facilities, in flagrant and
intentional disregard of Section 301 of the Act.
15. We find that Mr. Brewer's continuing course of conduct
raises questions as to whether he possesses the requisite
character qualifications to remain a Commission licensee.
Mr. Brewer's history of FCC-related transgressions and
apparent contempt for the Commission's regulatory authority
are patently inconsistent with his responsibilities as a
licensee and belie any suggestion that he can be relied upon
to comply with the Commission's rules and policies in the
future. Consequently, pursuant to Section 1.85 of the
Commission's rules, 47 C.F.R. § 1.85, we hereby give notice
of the suspension of Mr. Brewer's Amateur radio operator
license for the remainder of its term and, pursuant to
Section 312 of the Act, 47 U.S.C. § 312, commence a hearing
proceeding to determine whether Mr. Brewer's captioned
Amateur radio station license and GMRS license should be
revoked.
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED, pursuant to Section
303(m)(1)(A) of the Act, 47 U.S.C. § 303(m)(1)(A), and
Section 1.85 of the Commission's rules, 47 C.F.R. § 1.85,
that notice is hereby given of the suspension of the above-
captioned Amateur radio operator license held by Leslie D.
Brewer for the duration of its term. The suspension of the
captioned Amateur radio operator license shall take effect
15 calendar days after receipt by Leslie D. Brewer of this
Order, unless, within such time, Leslie D. Brewer requests
in writing a hearing on the matter of the suspension of his
captioned Amateur radio operator license, in which instance,
the suspension of his Amateur radio operator license shall
be held in abeyance pending conclusion of the hearing.
17. IT IS FURTHER ORDERED, pursuant to Sections 312(a)(2),
312(a)(4), and 312(c) of the Act, 47 U.S.C. §§ 312(a)(2),
312(a)(4), and 312(c), that the above?captioned Amateur
radio station and GMRS licenses held by Leslie D. Brewer ARE
DESIGNATED FOR HEARING in a proceeding before an FCC
Administrative Law Judge, at a time and place to be
specified in a subsequent Order, upon the following issues:
(a) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated Section
301 of the Communications Act of 1934, as
amended, by operating unlicensed broadcast
facilities in 1996, 1997, 1999 and/or 2000,
and, if so, the effect thereof on his basic
qualifications to be and remain a Commission
licensee.
(b) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated Section
301 of the Communications Act of 1934, as
amended, by operating an unlicensed Studio-
to-Transmitter Link in 1999 and/or 2000,
and, if so, the effect thereof on his basic
qualifications to be and remain a Commission
licensee.
(c) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated
Sections 2.803(a)(1) and/or 15.201(b) of the
Commission's rules by marketing and/or
selling an unauthorized radio frequency
device or devices, and, if so, the effect
thereof on his basic qualifications to be
and remain a Commission licensee.
(d) To determine, in light of the evidence
adduced pursuant to the foregoing issues,
whether Leslie D. Brewer is qualified to be
and remain a Commission licensee.
(e) To determine whether the captioned
Amateur radio station license and/or
General Mobile Radio Service license held
by Leslie D. Brewer should be revoked.
18. IT IS FURTHER ORDERED, pursuant to Section 303(m)(1)(A)
of the Act, 47 U.S.C. § 303(m)(1)(A), and Section 1.85 of
the Commission's rules, 47 C.F.R. § 1.85, that if Leslie D.
Brewer, within 15 calendar days of receipt of this Order,
requests in writing a hearing on the matter of the
suspension of his captioned Amateur radio operator license,
such hearing shall be held in a consolidated proceeding with
his above-captioned station license on issues (a) through
(d), above, and on the following issue:
(f) To determine whether the captioned
Amateur radio operator license held by
Leslie D. Brewer should be suspended for
the remainder of its term.
19. IT IS FURTHER ORDERED, pursuant to Section 503(b)(3)(A)
of the Act, 47 U.S.C. § 503(b)(3)(A), that, notwithstanding
the resolution of the foregoing issues, the Presiding
Administrative Law Judge shall determine whether an Order of
Forfeiture should be issued against Leslie D. Brewer for
having willfully and/or repeatedly violated Section 301 of
the Act on March 11, 2000, in an amount not to exceed
$11,000.
20. IT IS FURTHER ORDERED, pursuant to Section 503(b)(3)(A)
of the Act, 47 U.S.C. § 503(b)(3)(A), that, in connection
with the potential forfeiture liability noted above, this
document constitutes notice.
21. IT IS FURTHER ORDERED, pursuant to Section 1.91(c) of
the Commission's rules, 47 C.F.R. § 1.91(c), that, to avail
himself of the opportunity to be heard and to present
evidence at the hearing in this proceeding on the matter of
his captioned Amateur radio station and GMRS licenses,
Leslie D. Brewer, in person or by his attorney, shall file,
within 15 calendar days after receipt of this Order, a
written notice of appearance stating that he will appear at
the hearing and present evidence on issues specified in ¶
17, above. If Leslie D. Brewer fails to file a timely
written notice of appearance, his right to a hearing on the
matter of his captioned Amateur radio station and GMRS
licenses shall be deemed to be waived, and the proceeding
thereafter shall be conducted in accordance with Section
1.92 of the Commission's rules, 47 C.F.R. § 1.92.
22. IT IS FURTHER ORDERED, that Leslie D. Brewer may file
his written request for a hearing on the matter of his
captioned Amateur radio operator license in a consolidated
filing with his written notice of appearance on the matter
of his captioned Amateur radio station and GMRS licenses.
23. IT IS FURTHER ORDERED, pursuant to Section 312(d) of
the Communications Act of 1934, as amended, 47 U.S.C.
§312(d), and Section 1.91(d) of the Commission's Rules, 47
C.F.R. § 1.91(d), that the burden of proceeding with the
introduction of evidence and the burden of proof shall be
upon the Enforcement Bureau as to all of the issues
specified above.
24. IT IS FURTHER ORDERED that the Commission's Reference
Information Center shall send a copy of this Order, via
Certified Mail - Return Receipt Requested, to Leslie D.
Brewer, 6122 Liberty Avenue, Tampa, Florida 33617.
25. IT IS FURTHER ORDERED that the Secretary of the
Commission shall cause to have this Order or a summary
thereof published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 47 U.S.C. § 301. Section 301 of the Act provides in
pertinent part that no person shall operate any apparatus
for the transmission of communications by radio from one
place in any state to another place in the same state
without a license from this Commission.
2 The only pertinent exception to the blanket prohibition
on unlicensed operation is found in Section 15.239(b) of the
Commission's rules, 47 C.F.R. §15.239(b). This rule section
permits unlicensed emissions between 88 MHz and 108 MHz,
provided the field strength of such emissions does not
exceed 250 microvolts/meter at 3 meters. At all relevant
times, Mr. Brewer's FM emissions have exceeded these
parameters.
3 Letter, dated January 19, 1996, from L. D. Brewer to
Gerardo Daubar, Federal Communications Commission, Tampa,
Florida.
4 See Leslie D. Brewer, 12 FCC Rcd 13,490 (1997).
5 The June 19, 1997, letter denied the STA request because
it failed to satisfy the requirements of Section 15.7(a) of
the Commission's rules, 47 C.F.R. § 15.7(a), pursuant to
which the STA request was filed. The June 19, 1997, letter
returned Mr. Brewer's application as unacceptable for
tender, pursuant to Section 73.203(a) of the Commission's
rules, 47 C.F.R. § 73.203(a), because it proposed operation
of a new FM facility on a channel and in a location not
included in FM Table of Allotments. An application for
review of the June 19, 1997, actions is pending.
6 The U.S. District Court for the Middle District of
Florida, Tampa Division, on February 22, 2000, upheld the
validity of the in rem seizure.
7 File No. 6271-EX-PL-1998.
8 The Commission staff ultimately denied the STA request on
June 30, 2000, on multiple grounds.
9 These rule sections collectively prohibit the marketing
and/or sale of unauthorized transmission equipment.
10 On February 22, 2001, the Deputy Clerk for the United
States District Court, Middle District of Florida, Tampa
Division, entered a default against Mr. Brewer in connection
with a consolidated action brought by the Department of
Justice on behalf of the FCC to collect the $10,000
forfeiture and the earlier $1,000 forfeiture (see para. 4,
above) issued against Mr. Brewer. See, United States v.
Leslie D. Brewer, Entry of Default, Case No. 8:01-cv-59-T-
27MAP, February 22, 2001.
11 Policy Regarding Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179 (1986), on reconsideration, 1 FCC
Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179
(D.C. Cir. June 11, 1987). See also Policy Regarding
Character Qualifications in Broadcast Licensing, 5 FCC Rcd
3252 (1990), on reconsideration, 6 FCC Rcd 3448 (1991),
modified, 7 FCC Rcd 6564 (1992).
12 See, e.g., Herbert L. Schoenbohm, 13 FCC Rcd 15,026
(1998).
13 As noted above at n. 2, Section 15.239(b) of the
Commission's rules permits unlicensed transmissions in the
FM broadcast band, provided the transmissions are below
certain specified field strength levels. The record before
us indicates that Mr. Brewer's transmissions on the FM band
have, at all relevant times, exceeded these levels and,
thus, required a license.
14 United States v. Dunifer, 997 F. Supp. 1235, 1241 (N.D.
Cal. 1998), citing National Broadcasting Co. v. United
States, 319 U.S. 190, 227 (1943).