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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-11-OR-0015
John Hays ) NAL/Acct. No.: 201132620002
Bourg, LA ) FRN: 0020918033
)
)
Notice of apparent liability for forfeiture
Adopted: June 7, 2011 Released: June 7, 2011
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that John Hays ("Mr. Hays") apparently willfully violated section 301
of the Communications Act of 1934, as amended ("Act") and sections
95.410 and 95.411 of the Commission's rules ("Rules"), by operating a
radio transmitter without the requisite Commission authorization. We
conclude that Mr. Hays is apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On November 29, 2007, in response to a complaint of interference, the
Enforcement Bureau's New Orleans Office ("New Orleans Office") warned
Mr. Hays in writing of the penalties associated with operating his
citizen band ("CB") radio with excessive power. On December 3, 2007,
Mr. Hays responded to the New Orleans Office by telephone, admitted to
overpower operation, and was again warned orally to cease any
operation of his CB station that violated the Rules.
3. On June 3, 2010, in response to another complaint of interference,
agents from the New Orleans Office used direction finding techniques
to locate the source of the interference to a signal on CB channel 20
(27.205 MHz) emanating from Mr. Hays's residence. The same day, the
agents inspected the CB station and observed a linear amplifier
attached to Mr. Hays' CB transmitter. The agents, using a wattmeter,
measured the output power of the CB station with the in-line linear
amplifier at 750 watts. The agents then orally warned Mr. Hays that
the use of linear amplifiers or any device that results in power
levels greater than the authorized limit of 4 watts is prohibited and
voids the authority to operate the CB station. Mr. Hays admitted to
the agents that he operated his CB station overpower, and, at the
conclusion of the inspection, Mr. Hays voluntarily destroyed his
linear amplifier.
4. On February 10, 2011, in response to another complaint of
interference, agents from the New Orleans Office used
direction-finding techniques to again identify a signal on CB channel
20 (27.205 MHz) emanating from Mr. Hays's residence. The same day, the
agents inspected the CB station and observed a linear amplifier
attached to Mr. Hays's CB transmitter. The agents, using a wattmeter,
measured the output power of the CB station with the in-line linear
amplifier at 75 watts. Mr. Hays again admitted to the agents that he
was operating his CB overpower.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
6. 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. Section 95.404 of the Rules states that CB
operators do not require an individual license because they are
authorized by this rule to operate a CB station, provided, however,
that they operate the station in accordance with the rules in Subpart
D of Part 95 of the Rules ("CB Rules"). Operation of CB stations in a
manner that is inconsistent with the CB Rules requires a license
pursuant to section 301 of the Act. Section 95.411(a) of the Rules
states that CB operators may not attach external radio frequency (RF)
power amplifiers (sometimes called linears or linear amplifiers) to
certificated CB transmitters in any way. Section 95.411(b) of the
Rules states that there are no exceptions to this rule and that use of
a power amplifier voids the authority to operate the station. During
inspections of Mr. Hays's CB station on June 3, 2010, and February 10,
2011, agents from the New Orleans Office observed that Mr. Hays had
attached a linear amplifier to his CB transmitter. Section 95.410(a)
of the Rules states that CB station transmitter output power must not
exceed 4 watts carrier power. Section 95.410(c) of the Rules states
that use of a transmitter output power in excess of that authorized
voids the authority to operate the station. On June 3, 2010 and
February 10, 2011, agents from the New Orleans Office determined that
Mr. Hays operated a CB station from his residence, and, on both days,
the measured output power of Mr. Hays's CB transmitter and attached
amplifier exceeded authorized power levels. Because Mr. Hays attached
a linear amplifier to his CB transmitter and operated with more than
authorized power, he no longer had the authority to operate the CB
station without a license. Because he consciously operated his CB
station with an amplifier, we find that the apparent violations were
willful. Therefore, based on the evidence before us, we find that Mr.
Hays apparently willfully violated section 301 of the Act and sections
95.410 and 95.411 of the Rules by operating an unlicensed radio
transmitter.
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for operating without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Mr. Hays, by his own admission, operated overpower with a
linear amplifier on at least two different occasions. The fact that
Mr. Hays continued to operate overpower and with a linear amplifier
despite being warned both orally and in writing that such actions
violated the Act and Rules demonstrates a deliberate disregard for the
Commission's requirements. Thus, we find that an upward adjustment in
the forfeiture amount of $5,000 is warranted. Applying the Forfeiture
Policy Statement, section 1.80 of the Rules, and the statutory factors
to the instant case, we conclude that Mr. Hays is apparently liable
for a forfeiture in the amount of $15,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, and sections 0.111, 0.204, 0.311, 0.314 and 1.80 of the Rules,
John Hays is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violations of section 301 of the Act and sections 95.410 and 95.411 of
the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, John Hays SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions about payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Mr. Hays shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, New Orleans Office, 2424 Edenborn Ave. Suite
460, Metairie, LA 70001 and must include the NAL/Acct. No. referenced
in the caption. Mr. Hays also shall email the written response to
SCR-Response@fcc.gov.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to John Hays at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Walter Gernon
District Director
New Orleans
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 95.410, 95.411.
See Letter from New Orleans Office to John Hays, dated November 29, 2007.
The agents also monitored Mr. Hays's CB transmissions and heard him
transmit one-way communications and the word "faggot." We remind Mr. Hays
that CB operations must be consistent with section 95.413 of the Rules,
which provides that CB operators not transmit "one-way communications" or
"obscene, indecent or profane words, language or meaning." 47 C.F.R. S:
95.413. Violations of this rule could subject the operator to further
enforcement action.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied,
7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
47 U.S.C. S: 301.
47 C.F.R. S: 95.404.
47 C.F.R. S: 95.411(a).
47 C.F.R. S: 95.411(b). Use of the amplifier will be presumed if the RF
amplifier is located on your premises and if there is other evidence that
you have operated your CB station overpower. 47 C.F.R. S: 95.411(c).
47 C.F.R. S: 95.410(a).
47 C.F.R. S: 95.410(c).
On June 3, 2010 and February 10, 2011, Mr. Hays' CB transmitter and
amplifier were measured at 750 watts and 75 watts, respectively. See
paras. 3-4 supra.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement"); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Robert Brown, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
13740 (Enf. Bur. 2010 (upwardly adjusted by $5,000 because violator
operated an unlicensed radio station after notice that such action
violated the Rules); Nounoune Lubin, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 12654 (Enf. Bur. 2010) (upwardly adjusted by
$10,000 because violator operated an unlicensed radio station on multiple
days after notice that such action violated the rules).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 95.410, 95.411.
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-1000
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Federal Communications Commission DA 11-1000