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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
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Federal Communications Commission DA 13-2083