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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Orloff Haines Enid, Oklahoma ) ) ) ) ) ) File No.:
EB-FIELDSCR-13-00008788 NAL/Acct. No.: 201432500005 FRN: 0020321642
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 21, 2014 Released: March 21, 2014
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 Orloff Haines apparently willfully violated Section 333 of the
Communications Act of 1934, as amended (Act), and Section 95.413(a)(3)
of the Commission's rules (Rules),^ by operating a Citizens Band (CB)
radio transmitter to interfere with the communications of other CB
stations. We conclude that Mr. Haines is apparently liable for a
forfeiture in the amount of twelve thousand dollars ($12,000).
II. BACKGROUND
2. On May 14, 2013, an agent of the Enforcement Bureau's Dallas Office
(Dallas Office), using mobile direction finding techniques, positively
identified the source of a continuous carrier on CB Channel 19
(27.1850 MHz) to Mr. Haines's residence in Enid, Oklahoma. The agent
identified himself and requested to inspect the CB station located in
the residence. Mr. Haines was not present, but Mrs. Haines showed the
agent Mr. Haines's CB station, which was transmitting on Channel 19.
Mrs. Haines stated that Mr. Haines was "keyed on," or continuously
transmitting on Channel 19, because other CB operators in the area
were harassing her. The agent telephoned Mr. Haines during the
inspection and Mr. Haines admitted that he was "keyed on" Channel 19
to prevent other CB operators in the area from harassing his wife. At
the conclusion of the inspection, Mrs. Haines voluntarily turned off
Mr. Haines' CB transmitter, resolving the interference on Channel 19.
III. DISCUSSION
3. 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.^
A. Intentional Interference to CB Communications
4. The evidence in this case is sufficient to establish that Mr. Haines
violated Section 333 of the Act and Section 95.413(a)(3) of the Rules.
Section 333 of the Act prohibits any person from willfully or
maliciously interfering with or causing interference to any radio
communications of any licensed station.^ Section 95.413(a)(3) of the
Rules states that CB radio operators shall not "interfere
intentionally with the communications of another CB station."^ On May
14, 2013, an agent from the Dallas Office observed that Mr. Haines's
CB station was transmitting a continuous carrier on CB Channel 19,
which prevented communications by any other CB station on Channel 19
within approximately two miles of Mr. Haines's residence.^ Mr. Haines
admitted that he was transmitting a continuous carrier on CB Channel
19 to prevent other CB operators from harassing his wife. Based on the
evidence before us, we find that Mr. Haines apparently willfully
violated Section 333 of the Act and Section 95.413(a)(3) of the Rules
by intentionally interfering with other CB station communications.
B. Proposed Forfeiture
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for interference to
radio communications 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.^ Prior to May 14, 2013, Mr. Haines received two written
warnings from the Dallas Office advising him that intentionally
interfering with other CB operators violated the Act and Rules.^ The
fact that Mr. Haines interfered with other CB communications 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. Haines is apparently liable
for a total forfeiture in the amount of twelve thousand dollars
($12,000) for intentionally interfering with other CB radio
communications.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules, Orloff
Haines is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twelve thousand dollars ($12,000) for violations of
Section 333 of the Act and Section 95.413(a)(3) of the Rules.^
7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture, Orloff Haines SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
8. 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. Haines 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.
9. 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.
10. 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,
Texas 75243, and include the NAL/Acct. No. referenced in the caption.
Mr. Haines also shall e-mail the written response to
SCR-Response@fcc.gov.
11. 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.
12. 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 Orloff Haines 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 333; 47 C.F.R. S 95.413(a)(3).
^ 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 333.
^ 47 C.F.R. S 95.413(a)(3).
^ While the agent from the Dallas Office heard the continuous carrier
approximately two miles from Mr. Haines's residence, the range of Mr.
Haines's CB station may have exceeded two miles.
^ 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 Orloff Haines from James D. Wells, District Director, Dallas
Office, South Central Region, Enforcement Bureau (July 6, 2010) (on file
in EB-FIELDSCR-13-00008788); Letter to Orloff Haines from James D. Wells,
District Director, Dallas Office, South Central Region, Enforcement Bureau
(Apr. 1, 2011) (on file in EB-FIELDSCR-13-00008788). Mr. Haines responded
to the 2010 warning in writing and stated that he was intentionally
interfering with other CB radio operators to prevent them from harassing
his wife. Letter from Orloff Haines to the Dallas Office (July 18, 2010)
(on file on EB-FIELDSCR-13-00008788). Mr. Haines also responded via
telephone to the 2011 warning again stating that he was intentionally
interfering with other CB radio operators to prevent them from harassing
his wife.
^ See Carlton Lewis, Notice of Apparent Liability for Forfeiture, 28 FCC
Rcd 15975 (Enf. Bur. 2013) (upwardly adjusted proposed forfeiture by
$5,000 because violator operated CB station with linear amplifier after
receipt of two written warnings); 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).
^ 47 U.S.C. SS 333, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
95.413(a)(3).
^ 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).
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Federal Communications Commission DA 14-370
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Federal Communications Commission DA 14-370