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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Terry L. VanVolkenburg Cocoa, FL ) ) ) ) ) ) File No.:
EB-FIELDSCR-12-00004202 NAL/Acct. No.: 201332700001 FRN: 0002825925
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 1, 2013 Released: March 1, 2013
By the District Director, Tampa Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Terry L. VanVolkenburg apparently willfully and repeatedly
violated Sections 301 and 333 of the Communications Act of 1934, as
amended (Act),^ by operating a radio transmitter without a license on
the frequency 465.300 MHz and interfering with licensed
communications. We conclude that Mr. VanVolkenburg is apparently
liable for a forfeiture in the amount of twenty five thousand dollars
2. In September 2012, the Enforcement Bureau's Tampa Office (Tampa
Office) received a complaint of radio interference from the Brevard
County Sheriff's Department. The Sheriff's Department, licensee of
call sign WQCW384, utilizes a wireless radio communications system in
the county jail in Sharpes, Florida. According to the complaint,
during the months of September and October 2012, on at least 14 days,
the Sheriff's Department experienced intermittent interference to its
radio communications in the jail on the frequency 456.300 MHz. Audio
recordings taken by the Sheriff's Department suggests that a male
individual interfered with the prison's communications by transmitting
vulgar language, sound effects, previously recorded prison
communications, and threats to prison officials over the prison's
communications system.^ On September 10, September 19, October 3,
October 7, October 19, and October 21, 2012, a prison official
informed the individual over the air multiple times that he was
interfering with prison communications and that he should cease
operations. Those warnings were transmitted on the frequencies 460.300
MHz and 465.300 MHz.
3. In response, agents from the Tampa Office used direction-finding
techniques on October 28, 2012, and traced the source of the
interfering radio frequency transmissions on the frequency 465.300 MHz
to a residence in Cocoa, Florida. The frequency 465.300 MHz is
allocated to public safety stations,^ and Mr. VanVolkenburg is not
eligible to hold an authorization in the Public Safety Pool.^
Moreover, the Commission's records showed that no authorization was
issued to anyone to operate a private land mobile station at this
4. Approximately two hours after locating the source of the
transmissions, agents from the Tampa Office inspected the radio
stations in Mr. VanVolkenburg's residence. The agents recognized Mr.
VanVolkenburg's voice as the one interfering with the prison's
communications system. Mr. VanVolkenburg initially showed the agents
an amateur radio, incapable of transmitting on 465.300 MHz, but
eventually produced an Alinco DJ-C5 portable radio transceiver that
could operate on 465.300 MHz. Mr. VanVolkenburg did not specifically
admit that he had interfered with the prison's communications system,
but when asked about the transmissions on 465.300 MHz and the
interference to the prison's communications systems, he stated that he
chose 465.300 MHz because the prison's transmissions on that frequency
were strong; that he was only using 300 milliwatts and did not think
that he "could talk over anyone and therefore wasn't interfering with
anyone"; and that the interference would not happen again.
5. 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
A. Unlicensed Radio Transmissions
6. The evidence in this case is sufficient to establish that Mr.
VanVolkenburg 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.^ As the record
shows, on 14 different days during September and October 2012, an
individual transmitted non-prison-related communications over prison
communications systems on the frequency 465.300 MHz. On October 28,
2012, agents from the Tampa Office determined that an unlicensed radio
transmitter was operating on the frequency 465.300 MHz from Mr.
VanVolkenburg's residence in Cocoa, Florida. A review of the
Commission's records revealed that no license or authorization was
issued to anyone to operate a radio station on 465.300 MHz from this
location. Mr. VanVolkenburg had a radio transmitter capable of
operating on 465.300 MHz in his home and did not deny that he had
operated the transmitter on that frequency. Moreover, agents from the
Tampa Office identified Mr. VanVolkenburg's voice as matching that of
the individual on the recordings and transmitting on October 28, 2012.
The totality of the evidence convinces us that it was Mr.
VanVolkenburg who was operating the unlicensed transmitter from his
residence that was causing interference to the prison communications
systems over at least a two-month period. Because Mr. VanVolkenburg
consciously operated the station and did so on more than one day, the
apparent violations of the Act were both willful and repeated. We
therefore conclude, based on the evidence before us, that Mr.
VanVolkenburg apparently willfully and repeatedly violated Section
301 of the Act by operating radio transmission equipment without the
required Commission authorization.
B. Interference with Licensed Communications
7. The evidence in this case is also sufficient to establish that Mr.
VanVolkenburg violated Section 333 of the Act. Section 333 of the Act
states that "[n]o person shall willfully or maliciously interfere with
or cause interference to any radio communications of any station
licensed or authorized by or under this Act or operated by the United
States Government."^ The legislative history for Section 333 of the
Act identifies willful and malicious interference as "intentional
jamming, deliberate transmission on top of the transmissions of
authorized users already using specific frequencies in order to
obstruct their communications, repeated interruptions, and the use and
transmission of whistles, tapes, records, or other types of
noisemaking devices to interfere with the communications or radio
signals of other stations." As the record shows, on 14 different days
during September and October 2012, Mr. VanVolkenburg interfered with
licensed communications of the Brevard County Sheriff's Department. On
six days, the Sheriff's Department informed Mr. VanVolkenburg that he
was interfering with licensed prison communications and directed him
to cease. Mr. VanVolkenburg, however, continued to transmit an
interfering signal on 465.300 MHz and also issued threats against the
officers. Because Mr. VanVolkenburg consciously operated the station
on more than one day and was aware that his operations were
interfering with another user, the apparent violations of the Act were
both willful and repeated. We therefore conclude, based on the
evidence before us, that Mr. VanVolkenburg apparently willfully and
repeatedly violated Section 333 of the Act by willfully and
maliciously interfering with licensed communications of the Sheriff's
C. Proposed Forfeiture Amount
8. 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 the base forfeiture amount
for interference 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.^ We find Mr. VanVolkenburg's misconduct particularly
egregious because his unlicensed operation involved willful and
malicious interference to the communications of the Brevard County
Sheriff's Department, which included threats against the officers,
after being told (multiple times) to cease his interfering
communications. Thus, we find that an upward adjustment of $8,000 to
the combined base forfeiture of $17,000 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.
VanVolkenburg is apparently liable for a forfeiture in the amount of
IV. ORDERING CLAUSES
9. 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, Terry L.
VanVolkenburg is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty five thousand dollars ($25,000) for
violations of Sections 301 and 333 of the Act.^
10. 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, Terry L.
VanVolkenburg SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. 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. VanVolkenburg 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.
12. 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.
13. 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, Tampa Office, 4010 W. Boy Scout Blvd, Suite 425,
Tampa, FL 33607-5744, and include the NAL/Acct. No. referenced in the
caption. Terry L. VanVolkenburg also shall e-mail the written response
14. 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
15. 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 Terry L. VanVolkenburg at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
South Central Region
^ 47 U.S.C. SS 301, 333.
^ Audio recordings were taken on September 8, 9, 10, 12, 15, 16, 19, and
20, 2012; and on October 3, 7, 19, 20, 21, and 22, 2012. The male
individual threatened to take over the jail and shoot a deputy from his
hiding place in the bushes. The voice also claimed to know officers'
^ See 47 C.F.R. S 90.20(c)(3).
^ See 47 C.F.R. S 90.20(a). Mr. VanVolkenburg holds an amateur license
(call sign KC5RF), but the license does not authorize him to operate on
public safety frequencies. Moreover, Part 15 of the Commission's rules
(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
transmissions in the 216-960 MHz band is permitted only if the field
strength of the transmission does not exceed 200 mV/m at three meters. 47
C.F.R. S 15.209. Agents from the Tampa Office observed the transmissions
on 465.300 MHz at a distance of approximately 2 miles from Mr.
VanVolkenburg's residence. Given the distance from the source, the agents
determined that the transmissions' field strength exceeded allowable Part
^ 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. `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
^ 47 U.S.C. S 301.
^ 47 U.S.C. S 333.
^ 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., Estevan J. Gutierrez, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 12542 (Enf. Bur. 2011) (imposing $8,000 upward
adjustment to $17,000 base forfeiture amount because unlicensed operations
interfered with public safety communications and threatened harm to
officers and their families).
^ 47 U.S.C. SS 301, 333, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
^ 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)
Federal Communications Commission DA 13-305
Federal Communications Commission DA 13-305