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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-04-OR-186
Danny R. McKinney )
Bigelow, Arkansas ) NAL/Acct. No.200532620003
)
) FRN 0012802120
)
FORFEITURE ORDER
Adopted: June 6, 2005
Released: June 8, 2005
By the Regional Director, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand dollars
($1,000) to Danny R. McKinney for willful violation of
Section 301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Mr. McKinney's
operation of a radio transmitter on 156.325 MHz (VHF marine
channel 66) without Commission authorization.
II. BACKGROUND
2. On March 5, 2004, the Commission's New Orleans
Office of the Enforcement Bureau (``New Orleans Office'')
received a complaint about the misuse of VHF marine radios
along the Arkansas River in Arkansas. Agents from the New
Orleans Office contacted several employees of the Arkansas
Game and Fish Commission, who stated they had been trying
unsuccessfully to stem the use of VHF marine radios by area
hunters. Despite their efforts to educate hunters that such
use of VHF marine radios is illegal, the employees stated
hunters continued to use marine frequencies for hunting
activities.
3. On November 13, 2004, the opening day of deer
hunting season, agents from the New Orleans Office used
radio direction finding techniques to determine that the
source of a signal on 156.325 MHz (VHF marine channel 66)
was coming from a 1994 green GEO Tracker in Pulaski County,
Arkansas. The driver of the vehicle was observed talking
into a radio microphone. The agents determined that the
driver of the vehicle was Mr. McKinney and that the vehicle
was registered under his name. A search of Commission
records provided no authorization for Mr. McKinney to
operate on this frequency.
4. On December 13, 2004, the New Orleans Office sent
Mr. McKinney a warning letter for unlicensed operation of a
transmitter on 156.325 MHz. On December 23, 2004, the New
Orleans Office received a reply to the warning letter from
Mr. McKinney in which he admitted operating a radio
transmitter on 156.325 MHz without a license to talk to a
friend, the captain of the motor vessel, Sioux, and
occasionally other people. He also stated that he had
purchased the radio approximately two years ago.
5. On April 6, 2005, the New Orleans Office issued a
Notice of Apparent Liability for Forfeiture to Mr. McKinney
in the amount of ten thousand dollars ($10,000) for the
apparent willful violation of Section 301 of the Act.2 Mr.
McKinney filed a response to the NAL on May 6, 2005,
requesting cancellation or reduction of the forfeiture based
on inability to pay.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,3
Section 1.80 of the Commission's Rules (``Rules''),4 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) (``Forfeiture Policy Statement''). In
examining Mr. McKinney'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.5
7. Section 301 of the Act states 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. The frequency 156.325 MHz has been assigned to
VHF Marine Channel 66 for maritime services.6 Section 80.13
of the Rules states that stations in the maritime service
must be licensed either individually or by fleet.7 Ship
stations may also be licensed by rule under certain
circumstances without an individual license.8 However, ship
stations are defined as those radio stations located on
vessels not permanently moored.9 On November 13, 2004,
agents from the New Orleans Office determined that Mr.
McKinney operated a radio transmitter on 156.325 MHz, VHF
marine channel 66, from his land-based vehicle without a
license. Mr. McKinney admitted that he operated a radio
transmitter without Commission authorization. Thus, based
on the evidence, we find that Mr. McKinney willfully10
violated Section 301 of the Act by operating a radio
transmitter without the required authorization from the
Commission on November 13, 2004.
8. In his response to the NAL, Mr. McKinney asserts
that a $10,000 forfeiture would produce a financial hardship
and requests that the forfeiture be cancelled or
significantly reduced. The Commission has determined that,
in general, an entity's gross revenues are the best
indicator of its ability to pay a forfeiture.11 After
reviewing Mr. McKinney's tax returns, we conclude that a
reduction of the forfeiture to $1,000 would be appropriate.
9. Mr. McKinney also requested a reduction or
cancellation of the forfeiture, because he removed the radio
from his vehicle and is willing to turn over the radio to
the Commission. Mr. McKinney's remedial actions to cease
operation of the unlicensed transmissions, however, are
expected and do not warrant a cancellation or reduction in
the forfeiture amount.12 Finally, Mr. McKinney asked for a
reduction in the forfeiture, because his use of the radio
was limited and he did not intend to cause interference to
other users. As stated above, a violator need not intend to
violate the Act or the Rules or to cause interference for a
violation to be willful. Accordingly, we find no basis to
reduce the forfeiture below $1,000.
10. We have examined Mr. McKinney's response to the
NAL pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement. As a
result of our review, we conclude that Mr. McKinney
willfully violated Section 301 of the Act. Although
cancellation of the proposed monetary forfeiture is not
warranted, reduction of the forfeiture amount to $1,000 is
appropriate based on Mr. McKinney's demonstrated inability
to pay.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,13 Danny R. McKinney IS LIABLE FOR A
MONETARY FORFEITURE in the amount of one thousand dollars
($1,000) for willfully violating Section 301 of the Act.
12. 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.14 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.15
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Danny R. McKinney at his address of
record.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis P. Carlton
Regional Director, South
Central Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532620003 (Enf. Bur., New Orleans Office, April 6, 2005)
(``NAL'').
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
6See 47 C.F.R. § 80.373(f).
747 C.F.R. § 80.13.
847 C.F.R. §80.13(c).
9See 47 C.F.R. §§ 80.5, 80.13.
10Section 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).
11See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's
gross revenues); Local Long Distance, Inc., 16 FCC Rcd
24385 (2000) (forfeiture not deemed excessive where it
represented approximately 7.9 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 15 FCC
Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's
gross revenues).
12See AT&T Wireless Services, Inc., 17 FCC Rcd 21861,
21864-75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524,
para. 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03, para. 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117, para. 13 (Enf.
Bur. 2002).
1347 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1447 U.S.C. § 504(a).
15See 47 C.F.R. § 1.1914.