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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-FIELDWR-12-00001081
Glenn S. Yamada ))))))) NAL/Acct. No.: 201232780001
Kenai, Alaska FRN: 0021897384
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 17, 2012 Released: July 18, 2012
By the Resident Agent, Anchorage Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Glenn S. Yamada, a Citizens Band (CB) radio operator in
Kenai, Alaska, apparently willfully and repeatedly violated Section
301 of the Communications Act of 1934, as amended (Act), and Sections
95.409(a) and 95.411(a)(1) and (b) of the Commission's rules (Rules),
by operating a radio transmitter without the requisite Commission
authorization. We conclude that Mr. Yamada is apparently liable for a
forfeiture in the amount of twelve thousand five hundred dollars
($12,500). In addition, no later than thirty (30) calendar days from
the date of this NAL, Mr. Yamada must submit a statement signed under
penalty of perjury that he is no longer engaged in unlicensed radio
operations.
II. BACKGROUND
2. On January 22, 2012, the Commission received a complaint of
interference to an authorized user in the aeronautical band, a safety
of life service, on the frequency 21.964 MHz. The complaint concerned
a male subject talking and interfering with the control and monitoring
of air traffic over the North Atlantic. For several days, the
Commission's High Frequency Direction Finding Center (HFDFC) monitored
frequency 21.964 MHz and, on January 31, 2012, observed a subject
matching the details of the complaint transmitting on the frequency
21.965 MHz. Over the next several days, the HFDFC determined that the
subject was using the call "1600 Alaska"; that the subject's actual
operating frequency was 27.025 MHz (CB channel 6); and that the
subject's location was Kenai, Alaska.
3. On February 6, 2012, an agent from the Enforcement Bureau's Anchorage
Resident Agent Office (Anchorage Office) investigated the complaint of
interference. The agent, using direction-finding techniques, located
the source of the interference to Mr. Yamada's residence in Kenai,
Alaska. The interfering signal to frequency 21.964 MHz was determined
to be on frequency 21.965 MHz and correlated with CB station operation
on CB Channel 6, frequency 27.025 MHz, emanating from Mr. Yamada's
residence. On the same day, the Anchorage agent, accompanied by a
police officer from the Kenai Police Department, inspected Mr.
Yamada's CB station. The agent observed a non-certificated CB
transmitter and a linear amplifier as part of Mr. Yamada's CB station.
Mr. Yamada admitted to the agent that the linear amplifier was capable
of generating a power output of 200 watts. The agent observed that the
transmitter and the linear amplifier were connected, and that the
linear was connected to a transmission cable and ultimately to the
directional antenna at the back of Mr. Yamada's residence. Mr. Yamada
told the agent that this was his hobby setup and that he had been
operating it for the last several weeks.
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. 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 Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Unlicensed Operation in the Personal Radio Service, Citizens Band
5. 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 granted under the provisions of the Act.
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). Section 95.409(a) of the Rules states that CB operators must
use FCC certificated CB transmitters at their CB stations, and that
the use of a transmitter that is not FCC certificated voids their
authority to operate the station. Furthermore, Section 95.411(a)(1) 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 their authority to
operate the station.
6. On February 6, 2012, the Anchorage agent identified Mr. Yamada as the
operator that the Commission's HFDFC observed interfering with safety
of life operations on the frequency 21.965 MHz over multiple days in
January and February 2012. The agent's inspection of Mr. Yamada's CB
radio station revealed that Mr. Yamada was operating a
non-certificated transmitter with an RF linear amplifier. Mr. Yamada
admitted to the agent that he operated the devices for several weeks.
Such operation voided Mr. Yamada's authority to operate his CB radio
station under the CB Rules. As Mr. Yamada had no other authority to
operate a CB station, his operation was unauthorized. Consequently, we
find that Mr. Yamada apparently willfully and repeatedly violated
Section 301 of the Act, and Sections 95.409(a) and 95.411(a)(1) and
(b) of the Rules, by operating a CB radio station without
authorization.
B. Proposed Forfeiture Amount and Reporting Requirement
7. 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 for the service 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. Here, we find that an upward
adjustment of the base forfeiture amount is warranted because of the
gravity of the violations. As the record reflects, Mr. Yamada's
unauthorized operations posed a significant public safety risk, given
the interference caused to an authorized user in the aeronautical band
(a safety of life service). Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Mr. Yamada is apparently liable for a
forfeiture in the amount of $12,500.
8. Furthermore, given the public safety concerns of the violations, we
also direct Mr. Yamada to submit a statement signed under penalty of
perjury confirming whether he is still engaged in CB operations and,
if so, to state if 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 Anchorage Office at the address
listed in paragraph 11, below, within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order. Failure to comply with this requirement could subject the
licensee to additional enforcement action.
IV. ORDERING CLAUSES
9. 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 Commission's rules, Glenn S. Yamada is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand five hundred dollars ($12,500) for
violations of Section 301 of the Act and Sections 95.409(a) and
95.411(a)(1) and (b) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Glenn S. Yamada SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. IT IS FURTHER ORDERED that Glenn S. Yamada SHALL SUBMIT a written
statement, as described in paragraph 8, above, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Anchorage Office, PO Box 231949, Anchorage, AK 99523-1949. Glenn S.
Yamada shall also e-mail the written statement to WR-Response@fcc.gov.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Glenn S. Yamada shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
14. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Anchorage Resident Agent Office, P.O. Box 231949, Anchorage,
AK 99523-1949, and include the NAL/Acct. No. referenced in the
caption. Glenn S. Yamada also shall e-mail the written response to
WR-Response@fcc.gov.
15. 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.
16. 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 First Class Mail to Glenn S. Yamada, at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
David J. Charlton
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S:S: 95.409(a), 95.411(a)(1) and (b).
A review of the Commission's Universal Licensing System revealed that Mr.
Yamada had no individual license to operate a CB radio station.
Apparently, faulty equipment in use by Mr. Yamada on CB Channel 6 produced
a spurious signal on frequency 21.965 MHz, the source of the interference
to frequency 21.964 MHz.
Mr. Yamada admitted to the Anchorage agent that he used the "handle" "1600
Alaska."
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
47 C.F.R. S: 95.404.
47 C.F.R. S: 95.409(a).
47 C.F.R. S: 95.411(a)(1).
47 C.F.R. S: 95.411(b). The FCC will presume you have used a linear or
other external RF power amplifier if the amplifier is located in the
operator's premises and if there is other evidence showing that the
station was operated with more power than authorized. See 47 C.F.R. S:
95.410.
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), recons. 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:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 95.409(a), 95.411(a)(1) and (b).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
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 12-1104
Federal Communications Commission DA 12-1104