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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                           )                                     
                                                                 
                           )                                     
     In the Matter of          File No.: EB-FIELDWR-12-00003285  
                           )                                     
     Joshua M. McMurchie       NAL/Acct. No.: 201232920002       
                           )                                     
     Prineville, Oregon        FRN: 0021913389                   
                           )                                     
                                                                 
                           )                                     



                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  July 17, 2012   Released:  July 18, 2012

   By the Resident Agent, Portland Resident Agent Office, Western Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Joshua M. McMurchie 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 97.9 MHz in
       Prineville, Oregon.   We conclude that Mr. McMurchie is apparently
       liable for a forfeiture in the amount of fifteen  thousand dollars
       ($15,000).

   II. BACKGROUND

    2. On October 18, 2011, in response to a complaint from a local
       broadcaster, an agent from the Enforcement Bureau's Portland Resident
       Agent Office (Portland Office) used direction-finding techniques to
       locate the source of radio frequency transmissions on the frequency 
       97.9 MHz to Mr. McMurchie's residence in Prineville, Oregon. The agent
       determined that the signals on 97.9 MHz exceeded the limits for
       operation under Part 15 of the Commission's rules (Rules), and
       therefore required a license. Commission records showed no
       authorization issued to Mr. McMurchie or to anyone for operation of a
       broadcast station at or near this address. Accompanied by a police
       officer from the Prineville Police Department, the agent inspected the
       unlicensed radio station and issued a Notice of Unlicensed Operation
       (NOUO), which was left with another resident at the house. 

    3. On May 3, 2012, in response to a subsequent complaint, an agent from
       the Portland Office again used direction-finding techniques to locate
       the source of radio frequency transmissions on the frequency 97.9 MHz
       to Mr. McMurchie's residence.  The agent determined that the signals
       on 97.9 MHz exceeded the limits for operation under Part 15 of the
       Rules, and therefore required a license. Commission records still
       showed no authorization issued to Mr. McMurchie or to anyone for
       operation of a broadcast station at or near this address. Accompanied
       by a police officer of the Prineville Police Department, the Portland
       agent inspected Mr. McMurchie's station and again found a broadcast
       transmitter operating in a room in the residence. Mr. McMurchie
       acknowledged his operation of the unlicensed radio station on
       frequency 97.9 MHz to the Portland agent and offered to surrender the
       transmitter. The agent advised Mr. McMurchie that he had repeatedly
       violated Section 301 of the Act by operating an unlicensed radio
       station on frequency 97.9 MHz in Prineville, Oregon.

   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 Broadcast Operations

    5. The evidence in this case is sufficient to establish that Mr.
       McMurchie violated Section 301 of the Act. 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. On October 18,
       2011, and May 3, 2012, an unlicensed radio station on the frequency
       97.9 MHz was in operation at Mr. McMurchie's residence. On May 3,
       2012, Mr. McMurchie admitted to the Portland agent that he owned and
       operated the unlicensed radio station. A review of the Commission's
       records revealed that Mr. McMurchie did not have a license to operate
       a radio station at this location. Because Mr. McMurchie consciously
       operated the station, and did so on more than one day, the apparent
       violations of the Act were both willful and repeated. Based on the
       evidence before us, we find that Mr. McMurchie apparently willfully
       and repeatedly violated Section 301 of the Act by operating radio
       transmission equipment without the required Commission authorization.

     A. Proposed Forfeiture Amount

    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. In doing so, we find that the violation warrants a
       proposed forfeiture above the base amount. The fact that Mr. McMurchie
       repeatedly operated an unlicensed station when he knew that such
       actions were unlawful demonstrates a deliberate disregard for the Act
       and the Commission's requirements. Thus, we find that an additional
       upward adjustment of $5,000 in the forfeiture amount 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.
       McMurchie is apparently liable for a total forfeiture in the amount of
       $15,000. We further caution Mr. McMurchie that future violations may
       be subject to more severe enforcement action, including but not
       limited to larger monetary forfeitures, criminal prosecution, and the
       in rem seizure of his equipment.

   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 Commission's rules, Joshua M. McMurchie
       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.

    8. 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, Joshua M.
       McMurchie 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 check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account number
       and FRN referenced above. Joshua M. McMurchie will also send
       electronic notification on the date said payment is made to
       WR-Response@fcc.gov. 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. 

   10. 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.

   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. Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, Western
       Region, Portland Resident Agent Office, P.O. Box 61469, Vancouver,
       Washington 98666-1469, and include the NAL/Acct. No. referenced in the
       caption. Joshua M. McMurchie  also shall e-mail the written response
       to WR-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 First Class Mail, to Joshua M. McMurchie at his address
       of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Binh Nguyen

   Resident Agent

   Portland Resident Agent Office

   Western Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   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.

   Joshua McMurchie, On-Scene Notice of Unlicensed Operation, issued October
   18, 2011 (on file in EB-11-PO-0135). Although the station was in
   operation, Mr. McMurchie was not at the residence at the time of the
   inspection. The Portland Office also mailed Mr. McMurchie a formal NOUO,
   via Certified Mail, Return Receipt Requested,  informing him that his
   operation of an unlicensed broadcast station was in violation of the Act
   and that such operations must cease immediately. Joshua McMurchie, Notice
   of Unlicensed Operation, issued October 27, 2011 (on file in
   EB-11-PO-0135). The Portland Office subsequently received the Postal
   Return Receipt (PS Form 3811) for this NOUO, which was signed by Mr.
   McMurchie on October 29, 2011.

   See supra note 2.

   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 U.S.C. S: 503(b)(2)(E).

   See, e.g., Robert Brown, Memorandum Opinion and Order, DA 12-929, 2012 WL
   2391969 (Enf. Bur. rel. June 22, 2012) (upholding a $15,000 forfeiture for
   violations of Section 301); Lloyd Morris, Memorandum Opinion and Order, DA
   12-930, 2012 WL 2391973 (Enf. Bur. rel. June 22, 2012) (same).

   See 47 U.S.C. S:S: 401, 501, 503, 510.

   47 U.S.C. S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80.

   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 12-1140

   Federal Communications Commission DA 12-1140