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                                   Before the

                       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
   Bureau:

   I. INTRODUCTION

    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
       ($25,000).

   II. BACKGROUND

    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
       location.

    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.

   III. DISCUSSION

    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
       one day.^

   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
       Department.

    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
       $25,000.

   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
       to SCR-Response@fcc.gov.

   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
       documentation submitted.

   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

   District Director

   Tampa Office

   South Central Region

   Enforcement Bureau

   ^ 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'
   names.

   ^ 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
   15 levels.

   ^ 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
   1362.

   ^ 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,
   1.80.

   ^ 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 13-305

   Federal Communications Commission DA 13-305