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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

   5

   Federal Communications Commission DA 11-1000