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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
)
)
FORFEITURE ORDER
Adopted: September 20, 2011 Released: September 20, 2011
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 four hundred-fifty dollars ($450) to John Hays ("Mr.
Hays") for willful violation of section 301 of the Communications Act
of 1934, as amended ("Act") and sections 95.410 and 95.411 of the
Commission's rules ("Rules"). The noted violations involved Mr. Hays's
operation of a radio transmitter without the requisite Commission
authorization.
II. BACKGROUND
2. On June 7, 2011, the Enforcement Bureau's New Orleans Office ("New
Orleans Office") issued a Notice of Apparent Liability for Forfeiture
("NAL") to Mr. Hays for operating his Citizens Band ("CB")
transmitter without the requisite Commission authorization. As
discussed in detail in the NAL, agents from the New Orleans Office
determined that Mr. Hays, despite verbal and written warnings issued
by the agents, continued unlicensed and overpower operation of a CB
transmitter attached to a linear amplifier from his residence in
Bourg, Louisiana. In view of the record evidence, including the fact
that Mr. Hays operated his CB transmitter in a manner that voided his
authorization after notice that such activity violated the Act and the
Commission's rules ("Rules"), the NAL proposed a forfeiture of $15,000
against Mr. Hays for violation of section 301 of the Act and sections
95.410 and 95.411 of the Rules. Mr. Hays submitted a response to the
NAL acknowledging that this was a "very serious matter; [he has] not
taken it lightly" and stating that he had "made the changes [he] had
to." Mr. Hays requests cancellation or reduction of the proposed
forfeiture, however, because he lives solely on social security
benefits and asserts that, as a result, he cannot afford to pay the
proposed forfeiture.
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Act, section 1.80 of the Rules, and the
Forfeiture Policy Statement. In examining Mr. Hays'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. As discussed below, we have considered Mr. Hays's response in
light of these statutory factors and we find that a reduction in the
forfeiture is warranted based solely on his documented inability to
pay.
4. As set forth in the NAL, agents from the New Orleans Office determined
Mr. Hays operated a CB transmitter with an attached amplifier with
excessive power on February 10, 2011. In his response to the NAL, Mr.
Hays does not deny any of the facts set forth in the NAL. Therefore,
we find that Mr. Hays willfully violated section 301 of the Act and
sections 95.410 and 95.411 of the Rules by operating an unlicensed
radio transmitter. With regard to an individual's or entity's
inability to pay a claim, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture. Having reviewed Mr. Hays's submitted documentation, we
conclude that the forfeiture should be reduced to $450, an amount
within the range determined by the Bureau to be affordable.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, John Hays IS
LIABLE FOR A MONETARY FORFEITURE in the amount of four hundred fifty
dollars ($450) for violations of section 301 of the Communications Act
of 1934, as amended, and sections 95.410 and 95.411of the Commission's
rules.
6. 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 enforcement 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/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. Please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Mr. Hays shall also send electronic notification to
SCR-Response@fcc.gov on the date said payment is made.
7. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to John Hays
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 95.410, 95.411.
John Hays, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 7919
(Enf. Bur. 2011).
A comprehensive recitation of the facts and history of this case can be
found in the NAL and is incorporated herein by reference.
NAL at 7919-7920.
Letter from John Hays, to the New Orleans Office dated June 8, 2011 ("NAL
Response").
Id.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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 U.S.C. S: 503(b)(2)(E).
See NAL Response at 1.
See PJB Communications of Virginia, Inc., Forfeiture Order, 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., Forfeiture Order, 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, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
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(f)(4), 95.140, 95.411.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1579
3
Federal Communications Commission DA 11-1579