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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of James R. Winstead Licensee of Amateur Station KD5OZY
Coleman, Texas ) ) ) File No.: EB-FIELDSCR-14-00013418 ) NAL/Acct. No.:
201432500003 ) FRN: 0005642657 ) )
ORDER
Adopted: April 22, 2014 Released: April 22, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
1. The Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) has settled its investigation into whether James
R. Winstead operated a radio transmitter to interfere with the
communications of other amateur licensees. The Commission's amateur radio
rules prohibit wilful or malicious interference with any radio
communication or signal. Mr. Winstead's transmissions prevented other
licensees from completing their conversations and disrupted amateur
communications in the area. Mr. Winstead has admitted that his actions
violated the Commission's rules and agreed to voluntarily relinquish his
amateur license and make a one thousand dollar ($1,000) voluntary
contribution to resolve the Bureau's investigation.
2. In this Order, we adopt the attached Consent Decree entered into
between the Bureau and Mr. Winstead. The Consent Decree terminates the
investigation and Notice of Apparent Liability for Forfeiture issued by
the Bureau of possible violations of Section 333 of the Communications Act
of 1934, as amended,^ and Section 97.101(d) of the Commission's rules^
concerning Mr. Winstead's operation of a radio transmitter to interfere
with the communications of other amateur licensees.
3. The Bureau and Mr. Winstead 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.
4. 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.
5. 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.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. 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 James R. Winstead 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 James R. Winstead Licensee of Amateur Station KD5OZY
Coleman, Texas ) ) ) ) ) ) ) File No.: EB-FIELDSCR-14-00013418 NAL/Acct.
No.: 201432500003 FRN: 0005642657
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission
(Bureau), by its authorized representative, and James R. Winstead, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into Mr. Winstead's violations of Section 333 of the
Communications Act of 1934, as amended,^ and Section 97.101(d) of the
Commission's rules.^
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. Winstead 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. Winstead's operation of a radio transmitter on the
frequency 7.195 MHz and interference with licensed communications,
which resulted in the issuance of a Notice of Apparent Liability for
Forfeiture, DA 14-204 (Enf. Bur. Feb. 19, 2014) (NAL).
h. "Parties" means Mr. Winstead 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 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 97.101(d) of the
Rules states that "[n]o amateur operator shall willfully or
maliciously interfere with or cause interference to any radio
communication or signal."^
4. On January 21, 2014, in response to several complaints, the Bureau
determined that Mr. Winstead was intentionally interfering with other
licensed amateur communications on the frequency 7.195 MHz. During an
inspection of the station, Mr. Winstead admitted that he had been
trying to interfere with other amateur licensee's communications and
showed an agent how he caused such interference. On February 19, 2014,
the Enforcement Bureau issued the NAL to Mr. Winstead and found him
apparently liable for a $7,000 forfeiture for his apparent violations
of Section 333 of the Act and Section 97.101(d) of the Rules.
5. In response to the NAL, Mr. Winstead 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. Winstead 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. Winstead 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. Winstead concerning the matters that were the
subject of the Investigation.
10. Relinquishment of Amateur License. Mr. Winstead holds an amateur
license (call sign KD5OZY). In consideration for the termination of
the Investigation, Mr. Winstead agrees to relinquish his amateur
license. Mr. Winstead provided a signed letter requesting the
Commission cancel his amateur license prior to signing this Consent
Decree.
11. Voluntary Contribution. Mr. Winstead 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 twelve
installments (each an Installment Payment). The first Installment
Payment of eighty seven dollars ($87) must be made within thirty (30)
calendar days after the Effective Date. Each successive Installment
Payment of eighty three dollars ($83) shall be due on the first day of
the next eleven (11) months following the initial Installment Payment.
Mr. Winstead 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. Winstead 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. Winstead 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. Winstead 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.
Winstead.
14. Waivers. Mr. Winstead 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. Winstead 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. Winstead nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and Mr.
Winstead shall waive any statutory right to a trial de novo. Mr.
Winstead 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. Winstead 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. Winstead 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 7.195 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
________________________________
James R. Winstead
________________________________
Date
^ 47 U.S.C. S 333.
^ 47 C.F.R. S 97.101(d).
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 U.S.C. SS 0.111, 0.311.
^ 47 U.S.C. S 333.
^ 47 C.F.R. S 97.101(d).
^ 47 U.S.C. S 333.
^ 47 C.F.R. S 97.101(d).
Federal Communications Commission DA 14-455
2
Federal Communications Commission DA 14-455
5