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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Donald Winton ) File Number: EB-07-HU-007
Licensee of Citizen Band Radio ) NAL/Acct. No.: 200732540003
Station
) FRN: 0016201386
Corpus Christi, Texas
)
)
FORFEITURE ORDER
Adopted: July 10, 2007 Released: July 12, 2007
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 seven thousand dollars ($7,000) to Donald Winton for
willful violation of Section 95.426(a) of the Commission's Rules. The
noted violation involves Mr. Winton's failure to make his CB radio
station available for inspection.
II. BACKGROUND
2. On February 21, 2007, in response to a complaint that a CB radio
station in Corpus Christi, Texas was jamming communications on CB
channel 19 by continually re-broadcasting the programming of a local
AM broadcast station, an agent from the Commission's Houston Office of
the Enforcement Bureau ("Houston Office") monitored communications on
CB channel 19 in the Corpus Christi area. The agent observed a radio
signal on CB channel 19 re-broadcasting the programming of a local AM
broadcast station; and using radio direction finding techniques
determined that the signal originated from an antenna mounted on a
house in Corpus Christi, Texas.
3. Still on February 21, 2007, while the agent was making measurements on
the radio signal from the CB radio station, Donald Winton exited the
house and walked down the driveway. The agent introduced himself as an
FCC agent, and requested to inspect the CB radio station inside the
house. Mr. Winton confirmed this location was his residence and that
the CB station belonged to him, but refused to make the station
available for inspection. The agent advised Mr. Winton that the
Commission's Rules require the operator of a CB radio station to make
the station available for inspection. Mr. Winton still refused to make
the station available for inspection. The agent then requested that
Mr. Winton go inside and take the station off the air because it was
blocking communications on CB radio channel 19. Mr. Winton walked into
the house and the station's transmissions ceased. Mr. Winton returned
and continued to refuse to make the station available for inspection,
so the agent left the area.
4. On April 23, 2007, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Winton in the amount of seven thousand
dollars ($7,000), for the apparent willful violation of Section 301 of
the Act. Mr. Winton submitted a response to the NAL requesting a
reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended, ("Act") Section 1.80 of the Rules, 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. Winton'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.
6. Section 95.426(a) requires that if an authorized FCC representative
requests to inspect your CB station, you must make your station and
records available for inspection. Section 303(n) of the Act authorizes
the Commission to inspect all radio installations associated with
stations ... which the Commission has by rule has authorized to
operate without a license. Mr. Winton admitted to an agent from the
Houston Office that he had a CB radio station within his residence. In
addition, Mr. Winton demonstrated he had access to and control of the
station by entering his residence and turning the transmitter off,
while the agent waited outside. On February 21, 2007, in response to
several requests by agent to inspect his station, Mr. Winton refused
to make his CB station available for inspection. Based on the evidence
before us, we find that on February 21, 2007, Mr. Winton willfully
violated Section 95.426(a) of the Rules by refusing to allow an
inspection of his CB station.
7. In response to the NAL, Mr. Winton asserts that his CB transmitter was
not on when the agent arrived, and that, if it was on, it must have
been operated by homeless people, whom he allows access to his home.
He claims that he did not allow the agent access to his home, because
the agent did not have a warrant and because he was concerned that his
dogs might injure the agent. Finally, he states that he was not aware
of any of the Commission's Rules governing CB radios.
8. We do not find Mr. Winton's response to the NAL persuasive. It is
irrelevant whether the CB transmitter was on or whether homeless
people were operating it when the agent requested to inspect Mr.
Winton's CB station. In his response to the NAL, Mr. Winton admits
that the CB transmitter was his property. He also admits that he
refused to provide the agent access to his CB station located in his
residence. Section 303(n) of the Act and Section 95.426(a) of the
Rules authorize inspection of all CB stations by the Commission.
Accordingly, agents are not required to obtain a warrant to inspect a
CB station. The agent informed Mr. Winton of these provisions when he
requested to inspect the station. Moreover, if Mr. Winton was
concerned about the agent's safety, he should have confined his dogs
to a separate room, prior to allowing the agent to inspect his CB
station, rather than refusing the inspection.
9. Finally, Mr. Winton asserts that a $7,000 forfeiture would produce a
financial hardship and requests that the forfeiture be cancelled or
significantly reduced. However, Mr. Winton failed to submit sufficient
documentation regarding his finances. Accordingly, we are unable to
determine whether a reduction based on inability to pay is warranted
and deny his request for reduction of the proposed forfeiture.
10. We have examined Mr. Winton'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 find no basis for
cancellation or reduction of the $7,000 forfeiture proposed for this
violation.
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, Donald Winton IS LIABLE FOR A
MONETARY FORFEITURE in the amount of seven thousand dollars ($7,000)
for violation of Section 95.426(a) 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. 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: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Donald Winton at
his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S: 95.426(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732540003
(Enf. Bur., Houston Office, April 23, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 95.426(a).
47 U.S.C. S: 303(n).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
However, Mr. Winton has no explanation for how the agents used direction
finding techniques to locate the source of the signal on CB Channel 19 to
his residence or how they were able to observe the signal right before he
came out of his house.
Although Mr. Winton was informed of Section 95.426 of the Rules, because
Mr. Winton consciously refused to allow the agent access to his CB
station, his violation was willful even if he was unaware of the Rule.
According to the agent from the Houston Office, Mr. Winton did not mention
his dogs when he refused to allow the inspection.
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 95.426(a).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3098
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Federal Communications Commission DA 07-3098