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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Frank Kluz ) File No. EB-02-DT-610
Lancaster, Ohio ) NAL/Acct. No. 200232360008
) FRN 0007-4207-22
)
FORFEITURE ORDER
Adopted: August 12, 2003 Released: August 14,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five hundred dollars
($500) to Frank Kluz, Lancaster, Ohio, for willful violation
of Section 95.411 of the Commission's Rules (``Rules'').1 The
noted violation involves Mr. Kluz's use of an external radio
frequency power amplifier (``linear amplifier'') as part of
his Citizens Band (``CB'') radio station.
2. On July 23, 2002, the Commission's Detroit, Michigan
Field Office (``Detroit Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Mr. Kluz in the amount
of five thousand dollars ($5,000).2 A letter responding to
the NAL was filed on Mr. Kluz's behalf on October 3, 2002.
II. BACKGROUND
3. On June 22, 2001, the City of Lancaster, Ohio, Office
of the Law Director and City Prosecutor Office, sent a
complaint letter to the Detroit Office. The complaint alleged
that a CB radio station operated by Mr. Kluz was causing
interference to home electronics equipment, such as
televisions, radios and telephones, in his neighborhood.
4. On July 19, 2001, the Detroit Office sent a Quiet Hours
letter to Mr. Kluz directing him, his family, and any guests
visiting him, not to operate any base or mobile radio
transmitter from his property or adjacent roadways from the
time the letter was received until he contacted the Detroit
Office to make arrangements for an inspection of his CB radio
facility. 3
5. On August 1, 2001, Mr. Kluz sent a response to the
Detroit Office. In this response, Mr. Kluz indicated that he
would comply with the order not to operate his CB radio
station, but did not make arrangements for an inspection of
his CB station.
6. On October 16, 2001, the City of Lancaster, Ohio,
Office of the Law Director and City Prosecutor Office, sent a
second complaint letter to the Detroit Office. The complaint
alleged that Mr. Kluz's CB radio transmissions continued to
cause interference to neighborhood televisions, radios and
telephones, thereby violating the Quiet Hours letter.
7. On October 31, 2001, an agent from the Detroit Office
traveled to Lancaster, Ohio and monitored for transmissions
from Mr. Kluz's CB station, but did not observe any
transmissions from his station at that time. The agent went
to 245 Talmadge Avenue, Lancaster, Ohio, the address stated in
the complaints as Mr. Kluz's residence. The agent inspected
Mr. Kluz's CB station and found it to be in compliance with
applicable FCC rules and regulations. Accordingly, on
November 14, 2001, the Detroit Office sent a letter to Mr.
Kluz releasing him from the conditions that had been imposed
on his operation of the CB station by the Quiet Hours letter.
8. On January 21, 2002, the Office of Congressman David L.
Hobson referred a complaint to the Detroit Office from his
constituents regarding interference to telephones and home
electronic equipment allegedly caused by Mr. Kluz's CB radio
station.
9. On June 10, 2002, the Detroit Office received a
complaint from a resident in Lancaster, Ohio. The complaint
alleged that Mr. Kluz's CB radio station was causing
interference to neighborhood home electronics equipment.
10. On June 25, 2002, agents from the Detroit Office
traveled to Lancaster, Ohio and monitored CB transmissions
using a mobile direction finding vehicle. The agents detected
CB transmissions on 27.185 MHz (CB Channel 19) and, at
approximately 8:26 p.m., positively identified the source of
the transmissions to be a residence at 245 Talmadge Avenue.
The agents then proceeded to the residence at 245 Talmadge
Avenue, interviewed Mr. Kluz, and inspected his CB radio
station. The agents observed a Palomar TX-200B linear
amplifier attached to Mr. Kluz's CB transceiver. Mr. Kluz
told the agents that he had obtained the linear amplifier from
a friend two days earlier and was checking it out for his
friend. Measurements taken by the agents indicated that the
linear amplifier had an output power that ranged from 12.5
watts to 75 watts, which exceeds the permissible power limits
specified in Section 95.410 of the Rules.4
11. On July 23, 2002, the Detroit Office issued a NAL for a
$5,000 forfeiture to Mr. Kluz for using a linear amplifier as
part of his CB radio station in willful violation of Section
95.411 of the Rules.5 Mr. Kluz did not respond to the NAL.
However, on October 3, 2002, the Commission received a letter
from Dr. James LeSar, M.D., responding to the NAL on behalf of
Mr. Kluz. In this letter, Dr. LeSar asserts that due to the
nature of his medical problems, Mr. Kluz is unable to
understand and unable to willfully violate Section 95.411 by
having a linear amplifier attached to his CB station.
According to Dr. LeSar, Mr. Kluz suffers from several medical
conditions, including dementia and a possible brain tumor, and
has poor reading comprehension. Dr. LeSar's letter indicates
that he did not personally examine Mr. Kluz. Dr. LeSar wrote
that he was including documentation to demonstrate to the
Enforcement Bureau that Mr. Kluz was unable to willfully
violate Section 95.411; however, no documentation was
included.
12. On June 17, 2003, the Enforcement Bureau sent a letter
to Dr. LeSar requesting the referenced documentation. We
received Dr. LeSar's response to our letter on June 30, 2003.
13. Accompanying Dr. LeSar's response was an evaluation of
Mr. Kluz taken by Dr. Marc Miller for the Bureau of Disability
Determination, on February 6, 2002. In the evaluation, Dr.
Miller concluded that Mr. Kluz suffers from depression,
cognitive difficulties, dementia, and memory problems. The
evaluation further indicated that Mr. Kluz had a driver's
license, drove to the evaluation appointment, and is able to
manage his own funds. The evaluation did not state that Mr.
Kluz was unable to willfully violate Section 95.411, or that
Mr. Kluz was unable to know the actions he takes.
III. DISCUSSION
14. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended, (``Act''),6 Section
1.80 of the Rules,7 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''). In examining Mr. Kluz's response, 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.8
15. Section 95.411 of the Rules prohibits attaching a
power amplifier to a CB transmitter in any way. Furthermore,
under Section 95.411(c) of the Rules, there is a presumption
that a linear or other external RF power amplifier has been
used if it is found in the possession of, or on the premises
of, the CB radio station operator and there is other evidence
that the CB station was operated with more power than allowed
by the rules. On June 25, 2002, FCC agents positively
identified Mr. Kluz's CB station as the source of CB
transmissions on 27.185 MHz (CB Channel 19) and immediately
thereafter inspected his CB station. This inspection revealed
that the station consisted of a CB transceiver with an
attached linear amplifier and power indicator meter. Mr. Kluz
acknowledged at the time of the inspection that he had been
operating the CB station with the attached linear amplifier.
Accordingly, we conclude that Mr. Kluz violated Section 95.411
of the Rules by operating a CB radio station with a linear
amplifier.
16. We also conclude that this violation was willful within
the meaning of Section 503(b) of the Act. The term
``willful,'' as used in Section 503(b) of the Act, does not
require a finding that the rule violation was intentional or
that the violator was aware that it was committing a rule
violation.9 Rather, the term ``willful'' simply requires that
the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's
rules.10 Dr. LeSar asserts in his letter that Mr. Kluz is
unable to understand and unable to willfully violate Section
95.411 because he suffers from several medical conditions,
including dementia and a possible brain tumor, and has poor
reading comprehension. Dr. LeSar does not indicate, however,
that Mr. Kluz was ever examined or questioned specifically to
determine whether he understands what a linear amplifier is or
how to turn it on. Moreover, based on correspondence from Mr.
Kluz to the Detroit Office and the agents' interview of Mr.
Kluz, at the time of the inspection, Mr. Kluz clearly knew
that he had hooked up a linear amplifier to his CB radio
station because he admitted to the agents that he was checking
it out for a friend. Finally, we determine that the
information provided by Dr. LeSar and Dr. Miller concerning
Mr. Kluz's inability to act willfully is not sufficient to
overcome our conclusion that Mr. Kluz knew he was using a
linear amplifier. Specifically the psychological evaluation
does not state that Mr. Kluz is unable to know the actions he
takes, and therefore the evaluation does not refute Mr. Kluz's
own statement that he was operating a linear amplifier.
Accordingly, based on the evidence in the record, we find that
Mr. Kluz willfully violated Section 95.411 of the Rules.
17. We have examined Mr. Kluz's information, relating to
his ability to pay, and determined that the proposed $5,000
forfeiture would impose a financial hardship on Mr. Kluz.
Therefore, we will reduce the forfeiture amount from $5,000 to
$500.
18. Finally, we note that we have not received any recent
complaints concerning Mr. Kluz's use of a linear amplifier.
However, if we receive further complaints stemming from Mr.
Kluz's improper use of a linear amplifier, we will take
appropriate additional enforcement action.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,11 Frank Kluz IS LIABLE FOR A MONETARY FORFEITURE in
the amount of five hundred dollars ($500) for willful
violation of Section 95.411 of the Rules.
20. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules 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.12 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 reference NAL/Acct. No. 200232360008 and FRN
0007-4207-22. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.13
21. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Frank Kluz, 245 Talmadge Avenue, Lancaster, Ohio
43130.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 95.411.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232360008 (Enf. Bur., Detroit Office, rel. July 23, 2002).
3 Pursuant to Section 95.423 of the Rules, 47 C.F.R. § 95.423,
a CB operator must comply with any restricted hours of CB
station operation set forth in an official notice from the FCC
that the station is causing interference.
4 Section 95.410 of the Rules provides that a CB station
transmitter power output must not exceed 4 watts carrier power
(AM) and 12 watts peak envelope power (SSB) under any
conditions. 47 C.F.R. § 95.410.
5 Under Section 1.80(b)(4) of the Rules, $5,000 is the base
forfeiture amount for use of unauthorized equipment. 47
C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4): Section
I.¾Base Amounts for Section 503 Forfeitures.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,' ... 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).
10 Id.
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.