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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No: EB-10-TP-0108
Thomas L. Morey ) NAL/Acct. No.: 201132700006
St. Petersburg, Florida ) FRN: 0020835732
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 4, 2011 Released: May 5, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we find that
Thomas L. Morey ("Mr. Morey"), apparently willfully and repeatedly
violated section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
88.3 MHz in St. Petersburg, Florida. We conclude that Mr. Morey is
apparently liable for a monetary forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On August 13, 18, and 25, 2010, agents from the Enforcement Bureau's
Tampa Office ("Tampa Office") used direction-finding techniques to
locate the source of unidentified broadcast transmissions on the
frequency 88.3 MHz to a residence in St. Petersburg, Florida, which
Mr. Morey later admitted was his. The agents took field strength
measurements and determined that the signals being broadcast exceeded
the limits for operation under Part 15 of the Commission's rules
("Rules") and therefore required a license. A review of Commission
records showed no authorization issued to Mr. Morey, or for any
operation of an FM broadcast station on this frequency, at or near
this address. On August 18, 2010, the agents heard a male voice on the
air identify himself on 88.3 MHz as Disc Jockey ("DJ") "Thomas."
3. On August 31, 2010, agents from the Tampa Office inspected the
unlicensed radio station located in the garage of Mr. Morey's
residence in St. Petersburg, Florida and interviewed Mr. Morey. Mr.
Morey admitted that he planned and constructed the station, operated
it on the frequency 88.3 MHz, and DJ'd under the name "Thomas." Mr.
Morey further said that he started his operation from the garage about
2 to 3 weeks prior to August 31, 2010.
III. DISCUSSION
4. 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. The term "willful" as used in section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. Section 301 of the Act requires 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. On August 13, 18, and 25,
2010, agents from the Tampa Office determined that an unlicensed radio
station was operating on the frequency 88.3 MHz from a garage behind
Mr. Morey's residence in St. Petersburg, Florida. As discussed above,
during the Commission's inspection on August 31, 2010, Mr. Morey also
admitted to operating the unlicensed radio station on the frequency
88.3 MHz from his garage for about two to three weeks prior to the
date of the inspection. Because Mr. Morey consciously operated the
station, we find the apparent violation willful. Because the operation
occurred on more than one day, the apparent violation was repeated.
Based on the evidence before us, we find Mr. Morey apparently
willfully and repeatedly violated section 301 of the Act by operating
radio transmission apparatus without a license on the frequency 88.3
MHz in St. Petersburg, Florida.
6. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for operation 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. Morey is apparently liable for a forfeiture in the amount of
$10,000.
IV. ORDERING CLAUSES
7. 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 of the Rules, Thomas L. Morey is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violations of section 301 of the Act.
8. 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, Thomas L. Morey SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. 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 the 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 Federal Reserve Bank of New York, and
account number 27000001. For payment by credit card, an FCC from 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, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Mr. Morey shall also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
10. 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, if
any, should be mailed to Federal Communications Commission,
Enforcement Bureau, South Central Region, Tampa Office, 4010 W. Boy
Scout Blvd., Suite 425, Tampa, Florida 33607, along with the NAL/Acct.
No. referenced in the caption. The written statement shall also be
emailed to SCR-Response@fcc.gov.
11. 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.
12. 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 Thomas L. Morey at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
Southeast Region
Enforcement Bureau
47 U.S.C. S: 301.
The agents observed an antenna mounted to a pole at his residence.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, section 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S: 15.239.
47 U.S.C. S: 503(b).
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', when used with reference to the
commission or omission of any act, 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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recond. denied,
7 FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S: 301.
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) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-831
2
Federal Communications Commission DA 11-831