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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00001026
)
Arthur Lee Young NAL/Acct. No.: 201232480003
)
Cosby, TN FRN: 0021636261
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 27, 2012 Released: March 27, 2012
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Arthur Lee Young apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended (Act), and
apparently willfully violated Section 303(n) of the Act, by operating
an unlicensed radio transmitter on the frequency 87.9 MHz and refusing
to allow an inspection of his radio station. We conclude that Mr.
Young is apparently liable for a forfeiture in the amount of
twenty-two thousand dollars ($22,000).
II. BACKGROUND
2. On April 14, 2011, agents from the Enforcement Bureau's Atlanta Office
(Atlanta Office) used direction-finding techniques to locate the
source of radio frequency transmissions on the frequency 87.9 MHz to
Mr. Young's residence in Cosby, Tennessee. The agents determined that
the signals on 87.9 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.
Young or to anyone for operation of a broadcast station at or near
this address. During an inspection of the radio station, Mr. Young
admitted that he owned the radio equipment transmitting on 87.9 MHz
and voluntarily relinquished it. Thereafter, the Atlanta Office sent
Mr. Young a letter, informing him that his operation of an unlicensed
broadcast station was in violation of the Act and that such operations
must cease immediately.
3. On February 29, 2012, an agent from the Atlanta Office again used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 87.9 MHz to Mr. Young's residence. The
agent determined that the signals on 87.9 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. Young or to anyone for operation of a broadcast station at or near
this address. On February 29, 2012, Mr. Young and his wife met with
the agent outside of his residence, but refused to speak to the agent.
Mr. Young's wife, however, acknowledged that Mr. Young was operating
an unlicensed radio station from their residence. The agent asked to
inspect the station, but Mr. Young said "no" and walked away. The
agent informed Mr. Young that refusing to allow an inspection is a
separate violation of the applicable law.
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 Operations
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. On
April 14, 2011, and February 29, 2012, Mr. Young operated an
unlicensed radio station on the frequency 87.9 MHz from his residence.
Mr. Young admitted owning and operating the unlicensed radio station
on April 14, 2011, and Mr. Young's wife told the agent that he was
operating the unlicensed radio station on February 29, 2012. A review
of the Commission's records revealed that Mr. Young did not have a
license to operate a radio station at this location. Because Mr. Young
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. Young apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
A. Refusal to Allow Inspection
6. Section 303(n) of the Act states that the Commission has authority to
inspect radio installations associated with stations required to be
licensed or authorized by the Act. On February 29, 2012, Mr. Young
refused an official request by a Commission agent to inspect the radio
station located in his residence and in spite of being informed that
such refusal was a separate violation of the applicable law. Because
Mr. Young explicitly refused a reasonable and duly made request by a
Commission agent, we find the apparent violation willful. Based on the
evidence before us, we find that, on February 29, 2012, Mr. Young
apparently willfully violated Section 303(n) of the Act by refusing an
official and duly made request by a Commission agent to inspect the
radio installation located inside his residence while the station was
in operation.
A. Proposed Forfeiture Amount
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 is $10,000, and for refusing to allow
inspection is $7,000. 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 violations here warrant a proposed
forfeiture above the base amount. The fact that Mr. Young repeatedly
operated an unlicensed station-and also refused to allow a lawful
inspection of his equipment-when he knew that such actions were
unlawful demonstrate 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. Young is
apparently liable for a total forfeiture in the amount of $22,000. We
further caution Mr. Young 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
8. 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, Arthur Lee Young is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-two thousand dollars ($22,000) for violations of
Sections 301 and 303(n) of the Act.
9. 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, Arthur Lee
Young SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
10. 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. For questions about payment procedures,
contact the Financial Operations Group Help Desk at 1-877-480-3201 or
E-mail: ARINQUIRIES@fcc.gov. If payment is made, Arthur Lee Young
shall send electronic notification on the date said payment is made to
SCR-Response@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, South
Central Region, Atlanta Office, 3575 Koger Blvd, Suite 320, Duluth, GA
30096 and include the NAL/Acct. No. referenced in the caption. Arthur
Lee Young also shall e-mail the written response to
SCR-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 regular mail, to Arthur Lee Young at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Douglas Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 U.S.C. S:S: 301, 303(n).
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 15.209 of the Rules provides that
non-licensed broadcasting in the 30-88 MHz band is permitted only if the
field strength of the transmission does not exceed 100 mV/m at three
meters. 47 C.F.R. S: 15.209.
In addition, our records show that, in 2004, we informed Mr. Young that
his unlicensed broadcast operation was in violation of the Act and,
thereby, ordered him to cease the unauthorized operation. See Arthur
Young, Notice of Unlicensed Radio Operation, issued October 13, 2004 (on
file in EB-04-AT-148).
Arthur Young, Warning of Unlicensed Operation, issued April 19, 2011 (on
file in EB-11-AT-0032).
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: 303(n).
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).
See, e.g., Robert Brown, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13740 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending); Lloyd Morris, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13736 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending).
See 47 U.S.C. S:S: 401, 501, 503, 510.
47 U.S.C. S:S: 301, 303(n), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311,
0.314, 1.80.
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 12-475
5
Federal Communications Commission DA 12-475