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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Carlton Lewis Enid, Oklahoma ) ) ) ) ) File No.:
   EB-FIELDSCR-13-00008780 NAL/Acct. No.: 201432500002 FRN: 0023157472




                                Forfeiture Order

   Adopted: April 22, 2014 Released: April 22, 2014

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. Introduction

    1. We impose a penalty of $250 against Carlton Lewis  for operating his
       Citizens Band (CB) radio with a linear amplifier, thereby voiding his
       authorization to operate. Mr. Lewis does not deny operating his CB
       radio with a linear and states that he has quit operating his CB
       radio. He requests cancellation of the proposed $15,000 forfeiture
       because he is unable to pay it. Although we do not cancel the fine, we
       reduce the monetary penalty to $250, based on Mr. Lewis's documented
       inability to pay.

    2. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of two hundred fifty dollars ($250) to Mr. Lewis for
       willfully violating Section 301  of the Communications Act of 1934, as
       amended (Act), and Section 95.411 of the Commission's rules (Rules).^
       The noted violations involved Mr. Lewis's operation of his CB
       transmitter without authorization and with a linear amplifier.

   II. Background

    3. On November 26, 2013, the Dallas Office of the Enforcement Bureau's
       South Central Region issued a Notice of Apparent Liability for
       Forfeiture (NAL), which found Mr. Lewis in violation of Section 301 of
       the Act and Section 95.411 of the Rules and proposed a $15,000
       monetary forfeiture.^ As reflected in the NAL, the Bureau's agent
       determined that strong signals on 27.1850 (CB Channel 19) were
       emanating from Mr. Lewis's residence in Enid, Oklahoma on May 14,
       2013. After knocking and waiting outside of Mr. Lewis's residence for
       approximately 30 minutes, the agent was allowed by Mr. Lewis to
       inspect his CB station. The agent, accompanied by Mr. Lewis, observed
       that a coaxial cable coming into the residence was connected to a
       linear amplifier, which was warm to the touch. The agent also observed
       that Mr. Lewis's CB transmitter was warm to the touch but was not
       connected to the coaxial cable. Mr. Lewis did not respond when asked
       whether he had used the linear amplifier.

    4. Mr. Lewis submitted a response to the NAL, requesting cancellation of
       the forfeiture based on inability to pay.^ Mr. Lewis states that his
       only source of income is Social Security benefits. He also does not
       deny operating the linear amplifier and asserts that he has quit
       operating his CB radio.

   III. Discussion

    5. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
       Forfeiture Policy Statement.^ In examining Mr. Lewis's response,
       Section 503(b)(2)(E) of the Act requires that the Commission take into
       account the nature, circumstances, extent, and gravity of the
       violation 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.^ As discussed below, we have
       fully considered Mr. Lewis's response to the NAL in light of these
       statutory factors and find that cancellation of the forfeiture is not
       warranted; however, we find that reduction of the forfeiture is
       justified based solely on his inability to pay claim.

     A. Mr. Lewis Engaged in Unlicensed CB Operations

    6. We affirm the NAL's finding that Mr. Lewis willfully violated Section
       301 of the Act and Section 95.411 of the Rules.^ 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.^ Section 95.404 of the Rules states that CB operators are
       not required to have individual licenses because they are authorized
       by this rule to operate a CB station, provided, however, that they
       operate the station in accordance with Subpart D of Part 95 of the
       Rules (CB Rules).^ Operation of CB stations in a manner that is
       inconsistent with the CB Rules requires a license pursuant to Section
       301 of the Act.^ Section 95.411(a) of the Rules states that CB
       operators may not attach external radio frequency (RF) power
       amplifiers (sometimes called "linears" or "linear amplifiers") to
       certificated CB transmitters in any way.^ Section 95.411(b) of the
       Rules states that there are no exceptions to this rule and that use of
       a power amplifier voids the authority to operate the station.^ The
       Commission will presume an individual has used a linear or other
       external RF power amplifier if the amplifier is located on the
       individual's premises and if there is other evidence showing that a CB
       station was operated with more power than allowed by the Rules.^ It is
       undisputed that on May 14, 2013, Mr. Lewis operated his CB transmitter
       with a linear amplifier, thereby voiding his authorization to operate
       his CB station. Therefore, based on the evidence before us, we
       conclude that Mr. Lewis willfully violated Section 301 of the Act and
       Section 95.411 of the Rules.

   B. Inability to Pay Claim

    7. Mr. Lewis requests cancellation of the proposed forfeiture based on
       his inability to pay. With regard to an individual's or entity's
       inability to pay claim, the Commission has determined that, in
       general, gross income or revenues are the best indicator of an ability
       to pay a forfeiture.^ Based on the financial documents provided by Mr.
       Lewis, we find sufficient basis to reduce the forfeiture to $250.^
       However, we caution Mr. Lewis that a party's inability to pay is only
       one factor in our forfeiture calculation analysis, and is not
       dispositive.^ We have previously rejected inability to pay claims in
       cases of repeated or otherwise egregious violations.^ Therefore,
       future violations of this kind may result in significantly higher
       forfeitures that may not be reduced due to Mr. Lewis's financial
       circumstances. Accordingly, after consideration of the entire record
       (including Mr. Lewis's response to the NAL), the Forfeiture Policy
       Statement, and the factors set forth in Section 503(b)(2)(E) of the
       Act,^ we find that, although cancellation of the monetary forfeiture
       is not warranted, a reduction of the forfeiture amount from $15,000 to
       $250 is appropriate in this case.

   IV. ordering clauses

    8. 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(f)(4) of the Commission's rules, Carlton Lewis
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of two hundred fifty
       dollars ($250) for violations of Section 301 of the Act and Section
       95.411 of the Rules.^

    9. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Carlton Lewis shall send electronic
       notification of payment to SCR-Response@fcc.gov on the date said
       payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account number and FRN referenced above. 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.

   10. 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,
       [1]ARINQUIRIES@fcc.gov.

   11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by both First Class Mail and Certified Mail, Return Receipt
       Requested, to Carlton Lewis at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301; 47 C.F.R. S 95.411.

   ^ Carlton Lewis, Notice of Apparent Liability for Forfeiture, 28 FCC Rcd
   15975 (Enf. Bur. 2013). A comprehensive recitation of the facts and
   history of this case can be found in the NAL and is incorporated herein by
   reference.

   ^ See Letter from Carlton Lewis mailed to Dallas Office, South Central
   Region, Enforcement Bureau (rec. Dec. 27, 2013) (on file in
   EB-FIELDSCR-13-00008780).

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ Id. S 301; 47 C.F.R. S 95.411. See NAL, supra note 2.

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. S 95.404.

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. S 95.411(a).

   ^ Id. S 95.411(b).

   ^ Id. S 95.411(c).

   ^ See PJB Commc'ns of Va., Inc., Forfeiture Order, 7 FCC Rcd 2088, 2089
   (1992) (forfeiture not deemed excessive where it represented approximately
   2.02 percent of the violator's gross revenues); Local Long Distance, Inc.,
   Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not deemed excessive
   where it represented approximately 7.9 percent of the violator's gross
   revenues); Hoosier Broad. Corp., Forfeiture Order, 15 FCC Rcd 8640 (2002)
   (forfeiture not deemed excessive where it represented approximately 7.6
   percent of the violator's gross revenues).

   ^ This forfeiture amount falls within the percentage range that the
   Commission has previously found acceptable. See supra note 15. If Mr.
   Lewis finds it financially infeasible to make full payment of this amount
   within 30 days, he can request an installment plan, as described in
   paragraph 10, infra, of this Forfeiture Order.

   ^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to take into account
   the nature, circumstances, extent, and gravity of the violation and, with
   respect to the violator, the degree of culpability, any history of prior
   offenses, ability to pay, and such other matters as justice may require).

   ^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
   Region 2011) (holding that violator's repeated acts of malicious and
   intentional interference outweigh evidence concerning his ability to pay),
   aff'd, Memorandum Opinion and Order, DA 13-199 (Enf. Bur. Feb. 15, 2013);
   Hodson Broad. Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
   2009) (holding that permittee's continued operation at variance with its
   construction permit constituted an intentional and continuous violation,
   which outweighed permittee's evidence concerning its ability to pay the
   proposed forfeitures).

   ^ 47 U.S.C. S 503(b)(2)(E). See 47 C.F.R. S 1.80(b)(8).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4), 95.411.

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ 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.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 14-528

   4

   Federal Communications Commission DA 14-528

References

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