Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Carlton Lewis Enid, Oklahoma ) ) ) ) ) File No.:
EB-FIELDSCR-13-00008780 NAL/Acct. No.: 201432500002 FRN: 0023157472
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 26, 2013 Released: November 26, 2013
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find that
Carlton Lewis, a Citizens Band (CB) radio operator in Enid, Oklahoma,
apparently willfully violated Section 301 of the Communications Act of
1934, as amended (Act), and Section 95.411 of the Commission's rules
(Rules),^ by operating a radio transmitter without the requisite
Commission authorization from his residence. We conclude that Mr. Lewis is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On May 14, 2013, an agent from the Enforcement Bureau's Dallas Office
(Dallas Office) used direction finding techniques to determine that strong
signals on 27.1850 MHz (CB Channel 19) were emanating from Mr. Lewis'
residence in Enid, Oklahoma. The agent observed an antenna mounted on the
roof of the residence and traced a coaxial cable from the antenna into the
residence. The agent knocked on the door of Mr. Lewis' residence but no
one answered the door for over 30 minutes. A person eventually answered
the door and asserted that Mr. Lewis was not at home, however, after a few
minutes, Mr. Lewis appeared. Mr. Lewis showed the agent his CB
transmitter, which was warm to the touch. The agent observed that no
coaxial cables were connected to the CB transmitter. The agent also
observed the coaxial cable coming into the residence and traced it to a
linear amplifier hidden behind a sofa. The linear amplifier was also warm
to the touch. Mr. Lewis did not respond when asked whether he used the
linear amplifier.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully fails
to comply substantially with the terms and conditions of any license, or
willfully 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.^
A. Unlicensed CB Operations
4. 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.^ 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).^ Operation of CB stations in a manner that is inconsistent with
the CB Rules requires a license pursuant to Section 301 of the Act.^
Section 95.411(a) 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 the authority to operate the
station.^ The Commission will presume an individual has used a linear or
other external RF power amplifier if the amplifier is located on the
individual's premises and if there is other evidence showing that a CB
station was operated with more power than allowed by the Rules.^
5. We find that the record evidence in this case is sufficient to
establish that Mr. Lewis violated Section 301 of the Act and Section
95.411 of the Rules. As the record shows, on May 14, 2013, an agent from
the Dallas Office observed a linear amplifier in Mr. Lewis' residence,
which was warm to the touch and attached to a coaxial cable leading to an
external antenna. The agent also observed a CB transmitter in Mr. Lewis'
residence, which was disconnected from any coaxial cables and was warm to
the touch. Earlier that day, the agent determined that a strong signal on
CB Channel 19 was emanating from Mr. Lewis' residence. Under the Rules, we
presume that Mr. Lewis operated his CB station with the linear amplifier
because the amplifier was located on his premises and because the record
evidence, including the strong signal emanating from the residence,
indicates that his CB station was operated with more power than allowed by
the Rules.^ Therefore, based on the evidence before us, we find that Mr.
Lewis apparently willfully violated Section 301 of the Act and Section
95.411 of the Rules by operating a CB transmitter with a linear amplifier
and without a license.
B. Proposed Forfeiture
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operations 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.^ Prior to May 14, 2013, Mr. Lewis
received two written warnings from the Dallas Office advising him that
operating a linear amplifier with his CB transmitter voided his
authority to operate and violated the Act and Rules.^ The fact that
Mr. Lewis operated overpower and with a linear amplifier despite being
twice warned in writing that such actions violated the Act and Rules
demonstrates a deliberate disregard for the Commission's requirements
and authority. Thus, we find that an upward adjustment in the
forfeiture amount of $5,000 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. Lewis is apparently liable
for a total forfeiture in the amount of $15,000 for operating without
a license.
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, Carlton Lewis 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
Communications Act of 1934, as amended, and Section 95.411 of the
Commission's rules.^
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, Carlton Lewis 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. Mr. Lewis shall also send electronic notification on
the date said payment is made to SCR-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 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. 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, South Central Region,
Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas, TX 75243 and include
the NAL/Acct. No. referenced in the caption. Carlton Lewis 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 principles
(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 Carlton Lewis at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 301; 47 C.F.R. S 95.411.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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.").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd
3454 (1992).
^ 47 U.S.C. S 301.
^ 47 C.F.R. S 95.404.
^ 47 U.S.C. S 301.
^ 47 C.F.R. S 95.411(a).
^ 47 C.F.R. S 95.411(b).
^ 47 C.F.R. S 95.411(c).
^ Id.
^ 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).
^ Letter to Carlton Lewis from James D. Wells, District Director, Dallas
Office, South Central Region, Enforcement Bureau (Aug. 19, 2010) (on file
in EB-FIELDSCR-13-00008780); Letter to Carlton Lewis from James D. Wells,
District Director, Dallas Office, South Central Region, Enforcement Bureau
(Feb. 18, 2011) (on file in EB-FIELDSCR-13-00008780). Mr. Lewis responded
to both warnings, denying that he operated his CB station with a linear
amplifier.
^ See John Hays, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
7919 (Enf. Bur. 2011) (upwardly adjusted proposed forfeiture by $5,000
because violator operated CB station with a linear amplifier after being
warned orally and in writing that such action violated the Act and Rules);
see also Robert Brown, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13740 (Enf. Bur. 2011) (upwardly adjusted proposed forfeiture by
$5,000 because violator operated an unlicensed radio station after
receiving multiple warnings that such action violated the Act and Rules);
Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
12654 (Enf. Bur. 2010) (upwardly adjusted proposed forfeiture by $10,000
because violator operated an unlicensed radio station on multiple days
after receiving notice that such action violated the Act and Rules).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
95.411.
^ 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-2243
5
Federal Communications Commission DA 13-2243