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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Terry L. Van Volkenburg Cocoa, Florida ) ) ) File No.:
EB-FIELDSCR-12-00004202 ) NAL/Acct. No.: 201332700001 ) FRN: 0002825925
ORDER
Adopted: March 19, 2014 Released: March 19, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau of the Federal Communications Commission
(Bureau) and Terry L. Van Volkenburg. The Consent Decree terminates the
investigation and Notice of Apparent Liability for Forfeiture issued by
the Bureau of possible violations of Sections 301 and 333 of the
Communications Act of 1934, as amended,^ concerning Mr. Van Volkenburg's
operation of a radio transmitter on the frequency 465.300 MHz.
2. The Bureau and Mr. Van Volkenburg have negotiated the terms of a
Consent Decree that resolves this matter. A copy of the Consent Decree is
attached hereto and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree, terminating the investigation.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) and 503(b) of the
Communications Act of 1934, as amended,^ and Sections 0.111 and 0.311 of
the Commission's rules,^ the Consent Decree attached to the Order IS
ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
6. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested to Terry L. Van Volkenburg at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Terry L. Van Volkenburg Cocoa, Florida ) ) ) ) ) File
No.: EB-FIELDSCR-12-00004202 NAL/Acct. No.: 201332700001 FRN: 0002825925
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission
(Bureau), by its authorized representative, and Terry L. Van Volkenburg,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigation into Mr. Van Volkenburg's violations of Sections
301 and 333 of the Communications Act of 1934, as amended.^
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Mr. Van Volkenburg is subject by virtue of his operation of
radio transmitting equipment.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau
regarding Mr. Van Volkenburg's operation of a radio transmitter on the
frequency 465.300 MHz and interfering with licensed communications,
which resulted in the issuance of a Notice of Apparent Liability for
Forfeiture, 28 FCC Rcd 1927 (NAL).^
h. "Parties" means Mr. Van Volkenburg and the Bureau, each of which is a
"Party."
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. 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 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."^
4. In September 2012, the Bureau initiated an investigation in response
to a complaint of radio interference from the Brevard County Sheriff's
Department. The Bureau subsequently determined that Mr. Van Volkenburg
operated a radio transmitter on the frequency 465.300 MHz, without a
license, from his residence in Cocoa, Florida, which interfered with
the licensed wireless radio communications system used by the
Sheriff's Department in the county jail. On March 1, 2013, the
Enforcement Bureau issued the NAL to Mr. Van Volkenburg and found him
apparently liable for a $25,000 forfeiture for his apparent violations
of Sections 301 and 333 of the Act.
5. In response to the NAL, Mr. Van Volkenburg provided financial
documentation demonstrating that he is unable to pay the proposed
forfeiture.
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
7. Jurisdiction. Mr. Van Volkenburg agrees that the Bureau has
jurisdiction over him and the matters contained in this Consent Decree
and has the authority to enter into and adopt this Consent Decree.
8. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date. As of the
Effective Date, the Adopting Order and this Consent Decree shall have
the same force and effect as any other order of the Commission. Any
violation of the Adopting Order or of the terms of this Consent Decree
shall constitute a separate violation of a Commission order, entitling
the Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
9. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, Mr. Van Volkenburg agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts
developed in the Investigation through the Effective Date, or the
existence of this Consent Decree, to institute on its own motion any
new proceeding, formal or informal, or take any action on its own
motion against Mr. Van Volkenburg concerning the matters that were the
subject of the Investigation.
10. Relinquishment of Amateur License. Mr. Van Volkenburg holds an amateur
license (call sign KC5RF), which did not authorize him to operate on
the frequency 465.300 MHz. In consideration for the termination of the
Investigation, Mr. Van Volkenburg agrees to relinquish his amateur
license. Mr. Van Volkenburg provided a signed letter requesting the
Commission cancel his amateur license prior to signing this Consent
Decree.
11. Voluntary Contribution. Mr. Van Volkenburg agrees that he will make
a voluntary contribution to the United States Treasury in the amount
of one thousand dollars ($1,000) ("Voluntary Contribution") in ten
equal installments (each an Installment Payment). The first
Installment Payment of one hundred dollars ($100) must be made within
thirty (30) calendar days after the Effective Date. Each successive
Installment Payment of one hundred dollars ($100) shall be due on the
first day of the next nine (9) months following the initial
Installment Payment. Mr. Van Volkenburg acknowledges and agrees that
upon execution of this Consent Decree the Voluntary Contribution and
each Installment Payment shall become a "Claim" or "Debt" as defined
in 31 U.S.C. S 3701(b)(1). Upon an Event of Default (as defined
below), all procedures for collection as permitted by law may, at the
Commission's discretion, be initiated. In addition, Mr. Van Volkenburg
agrees that he will make the first and all subsequent Installment
Payments in United States Dollars without further demand or notice by
the dates specified above. Installment Payments 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. Van Volkenburg
shall also send electronic notification of each Installment Payment 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.
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.
12. Event of Default. Mr. Van Volkenburg agrees that an Event of Default
shall occur upon his failure to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
13. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the rate of the U.S. Prime Rate in effect on
the date of the Event of Default plus 4.75 percent, from the date of
the Event of Default until payment in full. Upon an Event of Default,
the then unpaid amount of the Voluntary Contribution, together with
interest, as aforesaid, any penalties permitted and/or required by the
law, including but not limited to interest and penalties permitted
under 31 U.S.C. S 3717 and administrative charge(s), plus the costs of
collection, litigation, and attorneys' fees, shall become immediately
due and payable, without notice, presentment, demand, protest, or
notice of protest of any kind, all of which are waived by Mr. Van
Volkenburg.
14. Waivers. Mr. Van Volkenburg waives any and all rights he may have to
seek administrative or judicial reconsideration, review, appeal, or
stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Adopting Order, provided the Bureau issues an
Adopting Order as defined herein. Mr. Van Volkenburg shall retain the
right to challenge Commission interpretation of the Consent Decree or
any terms contained herein. If either Party (or the United States on
behalf of the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither Mr. Van Volkenburg nor the
Commission shall contest the validity of the Consent Decree or of the
Adopting Order, and Mr. Van Volkenburg shall waive any statutory right
to a trial de novo. Mr. Van Volkenburg hereby agrees to waive any
claims he may have under the Equal Access to Justice Act, 5 U.S.C. S
504 and 47 C.F.R. S 1.1501 et seq., relating to the matters addressed
in this Consent Decree.
15. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
16. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree differs from any subsequent Rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which Mr. Van Volkenburg does not
expressly consent) regarding the same subject matter, that provision
will be superseded by such Rule or Commission order.
17. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. Mr. Van Volkenburg admits, solely for
the purpose of this Consent Decree and for Commission civil
enforcement purposes, and in express reliance on the provisions of
paragraph 9 herein, that his radio operations on the frequency 465.300
MHz, which were the subject of the Investigation, violated the
Communications Laws.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
20. Authorized Representative. The FCC signatory represents that he is
signing this Consent Decree in his official capacity and that he is
authorized to execute this Consent Decree.
21. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
________________________________
Date
________________________________
Terry L. Van Volkenburg
________________________________
Date
^ 47 U.S.C. SS 301, 333.
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 U.S.C. SS 0.111, 0.311.
^ 47 U.S.C. SS 301, 333.
^ Terry L. Van Volkenburg, Notice of Apparent Liability for Forfeiture, 28
FCC Rcd 1927 (Enf. Bur. 2013).
^ 47 U.S.C. S 301.
^ 47 U.S.C. S 333.
Federal Communications Commission DA 14-312
2
Federal Communications Commission DA 14-312
5