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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Glenn S. Yamada Kenai, Alaska ) ) ) ) ) File No.:
   EB-FIELDWR-12-00001081 NAL/Acct. No.: 201232780001 FRN: 0021897384




                                FORFEITURE ORDER

   Adopted: October 29, 2013 Released: October 30, 2013

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of five hundred dollars ($500) to Glenn S. Yamada, a
       Citizens Band (CB) radio operator in Kenai, Alaska, for willfully and
       repeatedly violating 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).^ The noted violations involved Mr.
       Yamada's operation of a radio transmitter without the requisite
       Commission authorization.

   II. BACKGROUND

    2. On July 18, 2012, the Enforcement Bureau's Anchorage Resident Agent
       Office (Anchorage Office) issued a Notice of Apparent Liability for
       Forfeiture (NAL)^ ^ for twelve thousand, five hundred dollars
       ($12,500) to Mr. Yamada for operating a non-certificated CB
       transmitter with a radio frequency (RF) linear amplifier which voided
       his authority to operate his CB station. In response to the NAL, Mr.
       Yamada does not deny the violations, but states that he did not intend
       to violate the Act or the Rules and that he is unable to pay the
       forfeiture.^

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
       Forfeiture Policy Statement.^ In examining Mr. Yamada's response,
       Section 503(b)(2)(E) of the Act requires that the Commission take into
       account the nature, circumstances, extent, and gravity of the
       violation 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.^

    4. We affirm the NAL's finding that Mr. Yamada violated Section 301 of
       the Act, and Sections 95.409(a) and 95.411(a)(1) and (b) of the
       Rules.^ 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 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 a CB
       operator's authority to operate the station.^

    5. As reflected in the NAL, an Anchorage Office agent identified Mr.
       Yamada as the operator that the Commission's High Frequency Direction
       Finding Center observed interfering with safety of life operations on
       the frequency 21.965 MHz over multiple days in January and February
       2012.^ The agent's subsequent 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.^  Based on the undisputed evidence, we conclude that Mr.
       Yamada 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 radio transmitter without the requisite Commission authorization.^

    6. In response to the NAL, Mr. Yamada requests cancellation of the
       $12,500 forfeiture, asserting first that he did not intentionally
       violate the Act and the Rules.^ Under the applicable statute, the
       Commission need not demonstrate an intent to violate a rule to make a
       finding that a licensee engaged in willful misconduct. As stated in
       the NAL, Section 312(f)(1) of the Act,^ which applies to violations
       for which forfeitures are assessed under Section 503(b) of the Act,
       provides that "[a]s 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."^ As the facts are undisputed
       that Mr. Yamada operated a non-certificated transmitter with an RF
       linear amplifier, we find that his violation of Section 301 of the
       Act, and Sections 95.409(a) and 95.411(a)(1) and (b) of the Rules was
       therefore willful according to Commission precedent.

    7. Mr. Yamada also contends that he is unable to pay the forfeiture and
       submits three years of tax returns to support his claim.^ With regard
       to an individual's or entity's inability to pay a claim, the
       Commission has determined that gross income or revenues are generally
       the best indicator of an ability to pay a forfeiture.^ Based on the
       financial documents provided by Mr. Yamada, we find sufficient basis
       to reduce the forfeiture to $500.^ Therefore, after consideration of
       the entire record and the factors listed above, we find that a
       forfeiture in the amount of $500 is warranted.

   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(f)(4) of the Commission's rules, Glenn S.
       Yamada IS LIABLE FOR A MONETARY FORFEITURE in the amount of five
       hundred dollars ($500) for violations of Section 301 of the Act, and
       Sections 95.409(a) and 95.411(a)(1) and (b) of the Rules.^

    9. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Glenn S. Yamada shall send electronic
       notification of payment to WR-Response@fcc.gov on the date said
       payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account Number and FRN referenced above. 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 making full payment over time 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.  IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
       First Class and Certified Mail, Return Receipt Requested, to Glenn S.
       Yamada at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. SS 95.409(a), 95.411(a)(1), (b).

   ^ Glenn S. Yamada, Notice of Apparent Liability for Forfeiture and Order,
   27 FCC Rcd 7974 (Enf. Bur. 2012) (NAL). A comprehensive recitation of the
   facts and history of this case can be found in the NAL and is incorporated
   herein by reference.

   ^ See Response from Glenn S. Yamada, to Anchorage Resident Agent Office,
   Western Region, Enforcement Bureau (Aug. 3, 2012) (on file in
   EB-FIELDWR-12-00001081) (NAL Response).

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See NAL supra note 3.

   ^ 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 a CB operator 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
   95.411(c).

   ^ NAL, 27 FCC Rcd at 7976, para 6.

   ^ Id.

   ^ Id.

   ^ Id.

   ^ As required by the NAL, Mr. Yamada submitted a written statement, which
   states that he is still engaged in CB operations and is using a certified
   transmitter that is not attached to a linear amplifier. See Statement of
   Glenn S. Yamada, to Anchorage Office, Western Region, Enforcement Bureau
   (Aug. 3, 2012) (on file in EB-FIELDWR-12-00001081).

   ^ NAL Response at 1.

   ^ 47 U.S.C. S 312(f)(1).

   ^ NAL, 27 FCC Rcd at 7975, para. 4 n.8 (quoting H.R. Rep. 97-765, 97^th
   Cong. 2d Sess. 51 (1982)).

   ^ See NAL Response at Attachment 1.

   ^ See PJB Communications of Virginia, Inc., Memorandum Opinion and Order,
   7 FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it
   represented approximately 2.02 percent of the violator's gross revenues);
   Hoosier Broadcasting Corp.,  Memorandum Opinion and Order, 15 FCC Rcd 8640
   (2000) (forfeiture not deemed excessive where it represented approximately
   7.6 percent of the violator's gross revenues).

   ^ The $500 forfeiture falls within the percentage range that the
   Commission has previously found acceptable. See supra note 24.

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4), 95.409(a), 95.411(a)(1), (b).

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ 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.

   Federal Communications Commission DA 13-2083

   3

   Federal Communications Commission DA 13-2083