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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-11-TP-0016
Michael W. Perry ) NAL/Acct. No.: 201232700003
Cross City, FL ) FRN: 0021257456
)
)
Notice of apparent liability for forfeiture AND ORDER
Adopted: November 1, 2011 Released: November 1, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Michael W. Perry ("Mr. Perry") apparently willfully
violated section 301 of the Communications Act of 1934, as amended
("Act"), and sections 95.409 and 95.411 of the Commission's rules
("Rules"), by operating a radio transmitter without the requisite
Commission authorization. We conclude that Mr. Perry is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000). In addition, no later than thirty (30) calendar days from
the date of this NAL, Mr. Perry must submit a statement signed under
penalty of perjury that he is no longer engaged in unlicensed radio
operations.
II. BACKGROUND
2. On March 31, 2011, in response to a complaint of interference, agents
from the Enforcement Bureau's Tampa Office ("Tampa Office"), used
direction-finding techniques to locate the source of the interference
to a signal on Citizens Band ("CB") channel 28 (on frequency 27.2850
MHz), emanating from Mr. Perry's residence. The same day, agents from
the Tampa Office inspected Mr. Perry's CB station, which he admitted
to using earlier that day. The agents observed a non-certificated CB
transmitter and three linear amplifiers as part of Mr. Perry's CB
station. Mr. Perry admitted to the agents that two of the three linear
amplifiers were capable of generating a power output of 200 watts and
1,500 watts, respectively, and that he had never tested the third. The
agents observed that the transmitter and two of the amplifiers were
warm to the touch, indicating that the devices had been recently
operated.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully fails
to comply substantially with the terms and conditions of any license,
or willfully 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.
4. 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 are not required to have individual licenses because they
are authorized by this rule to operate a CB station, provided,
however, that they operate the station in accordance with 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 95.409(a) of the Rules
states that CB operators must use FCC certificated CB transmitters at
their CB stations and the use of a transmitter that is not FCC
certificated voids the authority to operate the station." On March 31,
2011, agents from the Tampa Office observed signals on CB channel 28
emanating from Mr. Perry's residence. Agents from the Tampa Office
observed a non-certificated transmitter that was warm to the touch,
indicating recent operation. During an inspection of the CB station on
March 31, 2011, Mr. Perry admitted to the agents that he used the
non-certificated CB transmitter. Because Mr. Perry operated a
non-certificated CB transmitter, he no longer had authority to operate
the CB station. As a result, due to Mr. Perry's conscious operation of
a non-certificated CB transmitter, we find the apparent violation
willful. Based on the evidence before us, we find that Mr. Perry
apparently willfully violated section 301 of the Act and section
95.409 of the Rules by operating an unlicensed and non-certificated CB
transmitter.
5. 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 the inspection of Mr. Perry's
CB station on March 31, 2011, Mr. Perry admitted using two of the
three linear amplifiers observed next to his non-certificated CB
transmitter. The agents observed that the two amplifiers were warm to
the touch during the inspection, indicating that they were recently
operated. Because Mr. Perry operated his CB station with two linear
amplifiers attached, he no longer had the authority to operate the CB
station. Because he consciously operated with unauthorized amplifiers,
we find that the apparent violation was willful. Therefore, based on
the evidence before us, we find that Mr. Perry apparently willfully
violated section 301 of the Act and section 95.411 of the Rules by
operating an unlicensed radio transmitter with two amplifiers.
6. 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. Applying the Forfeiture Policy Statement, section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Perry is apparently liable for a forfeiture in the amount of
$10,000.
7. We direct Mr. Perry to submit a statement signed under penalty of
perjury that, to the extent he is engaged in CB operations, he: (1) is
using a certified CB transmitter; and (2) has not attached any linear
amplifiers to his CB station. This statement must be provided to the
Tampa Office at the address listed in paragraph 12 within thirty (30)
calendar days of the release date of this NAL. Failure to comply with
this requirement could subject the licensee to additional enforcement
action.
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,
Michael W. Perry is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE AND ORDER in the amount of ten thousand dollars ($10,000)
for violations of section 301 of the Act and sections 95.409 and
95.411 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order, Michael W. Perry SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. IT IS FURTHER ORDERED that Michael W. Perry SHALL SUBMIT a statement
as described in paragraph 7, supra, to the Tampa Office within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order.
11. 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. Perry shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
12. 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, Tampa Office, 4010 W. Boy Scout Blvd., Suite
425, Tampa, Florida 33607 and must include the NAL/Acct. No.
referenced in the caption. Mr. Perry also shall email the written
response to SCR-Response@fcc.gov.
13. 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.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both, Certified Mail, Return
Receipt Requested, and regular mail, to Michael W. Perry at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 95.409, 95.411.
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).
47 U.S.C. S: 301.
47 C.F.R. S: 95.404.
47 U.S.C. S: 301.
47 C.F.R. S: 95.409(a).
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 the operator's premises and if there is other
evidence that the station was operated overpower. 47 C.F.R. S: 95.411(c).
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).
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, 95.409, 95.411.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-1834
2
Federal Communications Commission DA 11- 1834