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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) File No. EB-99-HU-039
Robert L. Meyers
)
) NAL Acct. No X3254-001
Licensee of Amateur Radio Station N5WLY )
Houston, Texas
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications
Commission and Robert L. Meyers hereby enter into this
Consent Decree for the purpose of terminating a
forfeiture proceeding arising from an investigation
related to Meyers' operation of an Amateur Radio station.
BACKGROUND
2. Prompted by complaints of interference by an unknown
radio operator, the Commission's Houston Field Office
monitored and identified radio transmissions on February
24, 1999, emanating from a vehicle registered to Meyers.
The transmissions were on the input frequency of an
Amateur Radio repeater system operated by the Memorial
Emergency Repeater Association (``MERA'') on
145.470/144.870 MHz in the Houston area. On June 1,
1999, agents from the Houston office conducted an
inspection of the vehicle registered to Meyers and from
which they had monitored the interfering radio
transmissions on February 24. The agents found a whip
antenna similar to the type used for transmissions in the
144 MHz frequency range on the floor of the vehicle's
rear cargo area. The antenna was not connected to radio
equipment and the agents found no other radio equipment
in the vehicle at the time.
3. In June 1999, the Houston Field Office issued a Notice
of Violation for willful and malicious interference to
radio communications in violation of Section 333 of the
Communications Act of 1934, as amended (``Act''), for
violation of Section 97.101(d) of the Commission's rules
(``Rules'') and for transmitting unidentified Amateur
radio communications in violation of Section 97.119 of
the Rules. Meyers responded and denied the violations.
4. On January 13, 2000, the Commission's Houston Field
Office issued Meyers a Notice of Apparent Liability for
Forfeiture (``NAL'') finding Meyers apparently liable for
a forfeiture in the amount of $8,0001 The NAL stated
that Meyers had operated his Amateur Radio station so as
to willfully and maliciously cause interference to radio
communications in apparent willful violation of Section
333 of the Communications Act, 47 U. S. C. Section 333,
and Section 97.101(d) of the Commission's Rules, 47
C.F.R. Section 97.101(d), and transmitted unidentified
communications in apparent willful violation of Section
97.119 (a) of the Commission's Rules, 47 C.F.R. Section
97.119(a).
5. On February 4, 2000, Meyers submitted a response to the
NAL and requested cancellation. Meyers denied the
violations and claimed that during 1999 he did not have
radio transmitting equipment in the vehicle to which the
Field Agent stated he had located the transmissions.
Meyers stated that he never willfully or maliciously
interfered with any Amateur communications or transmitted
unidentified radio communications.
6. On May 3, 2000, the Enforcement Bureau issued a
Forfeiture Order affirming the $8,000 forfeiture amount.2
The Forfeiture Order noted that Meyers' assertions that
he never had a radio transmitter in his vehicle during
1999 were contradicted by the observations of the FCC
agent. On February 24, 1999, the FCC agent followed Mr.
Meyers' vehicle from a location near Meyers' residence to
his place of business at 8825 Salon Road. Immediately
after Meyers' vehicle came to a stop and parked in front
of 8825 Salon Road, the agent observed radio
transmissions consisting of derogatory remarks being
transmitted on the input frequency of the MERA repeater,
resulting in interference to communications already in
progress on the repeater. While monitoring these
frequencies, the agent observed that no FCC
identification was transmitted. The agent completely
circled Meyers' vehicle and positively determined that
the transmissions were coming from the vehicle.
Furthermore, the agent observed Meyers lowering his head
at the start of each of the transmissions and observed
him leaving the vehicle. No other persons or vehicles
were present. The agent observed a whip antenna of the
type used in the 144 MHz frequency range located in the
cargo area of Meyers' vehicle.
7. On June 2, 2000, Meyers, through his attorney,
submitted a Petition for Reconsideration and asked that
the Forfeiture Order be reversed. Meyers again denied the
violations and argued that the three month delay between
the time the agent identified the radio transmissions and
the time that Meyers' vehicle was inspected unfairly
prejudiced him because if an immediate inspection had
taken place, it would have shown that he had no radio
equipment in his vehicle.
DEFINITIONS
8. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``Commission'' means the Federal
Communications Commission.
(b) The ``Bureau'' means the Enforcement Bureau of the
Commission.
(c) The ``Order'' means the Bureau's order adopting
this Consent Decree.
(d) ``Enforcement Proceeding'' means the investigation
of and the series of Commission orders concerning
the alleged radio operation of Meyers culminating in
the Forfeiture Order.
(e) The ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151 et seq.
(f) ``Meyers'' means Robert L. Meyers, licensee of
Amateur Radio station N5WLY, Houston, Texas.
(g) ``Forfeiture Order'' means Robert L. Meyers, 15
FCC Rcd 8045 (Enf. Bur. 2000)
AGREEMENT
9. Meyers acknowledges and agrees that the Commission has
jurisdiction over the matters referenced in this Consent
Decree and that the Bureau has the authority to enter
into and adopt this Consent Decree.
10. Meyers agrees not to contest the findings in the
Forfeiture Order that Meyers violated Section 333 of the
Act with respect to the radio transmissions on February
24, 1999 provided that these findings shall not be used
by the Bureau against Meyers in any other current or
future proceedings before the Bureau, except as set forth
in paragraph 16 of this Consent Decree.
11. Meyers and the Bureau agree that this Consent Decree
does not constitute an adjudication of the merits, or any
finding on the facts or law regarding any violations
committed by Meyers arising out of the Enforcement
Proceeding, and that it is not to be construed as an
admission of the violations by Meyers.
12. Meyers shall make a voluntary contribution to the
United States Treasury in the amount of $1,000 within 30
calendar days after the Order adopting this Consent
Decree is no longer subject to reconsideration, appeal or
review in accordance with the Act and the Commission's
Rules. Meyers further agrees to submit his license for
Amateur Radio station N5WLY for cancellation within the
same time period, and not to re-apply for an Amateur
license for a period of 5 years after the date of the
order adopting this Consent Decree.
13. Meyers and the Bureau acknowledge and agree that this
Consent Decree shall constitute a final settlement
between them.
14. In express reliance upon the covenants and
representations contained herein, the Bureau agrees to
terminate the Enforcement Proceeding at such time as the
Bureau adopts this Consent Decree.
15. Meyers 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 Order adopting
this Consent Decree, provided the Order adopts the
Consent Decree without modification.
16. In the event that Meyers is found by the Commission or
its delegated authority to have engaged in conduct the
same or similar to that described in paragraph 2 of this
Consent Decree, Meyers and the Bureau agree that the
apparent misconduct described in paragraph 2 may be used
by the Bureau only to fashion an appropriate sanction,
provided that Meyers shall not be precluded or estopped
from litigating de novo any and all of the issues arising
from the facts and allegations presented in the NAL as
necessary to defend, in any forum, his interest from
challenge by any person or entity not a party to this
Consent Decree.
17. Meyers and the Bureau agree that the effectiveness of
this Consent Decree is expressly contingent upon issuance
of the Order, provided the Order adopts the Consent
Decree without modification.
18. Meyers and the Bureau agree that, in the event any
court of competent jurisdiction renders this Consent
Decree invalid, the Consent Decree shall become null and
void and may not be used in any manner in any legal
proceeding.
19. Meyers and the Bureau agree that, if the Commission, or
the United States on behalf of the Commission, brings a
judicial action to enforce the terms of the Order
adopting this Consent Decree, neither Meyers nor the
Commission will contest the validity of the Consent
Decree or Order, and Meyers will waive any statutory
right to a trial de novo with respect to the matter upon
which the Order is based, and shall consent to a judgment
incorporating the terms of this Consent Decree.
20. Meyers agrees to waive any claims it may otherwise have
under the Equal Access to Justice Act, 5 U.S.C. § 504 and
47 C.F.R. §§ 1.1501 et seq.
21. Meyers agrees that any violation of the Consent Decree
or the Order adopting the Consent Decree will 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.
22. Any provision of this Consent Decree affected by or
inconsistent with any subsequent rule or order adopted by
the Commission will be superseded by such Commission rule
or order.
23. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION ROBERT L. MEYERS
ENFORCEMENT BUREAU
By: _____________________
By:_________________________
David H. Solomon Robert L. Meyers
Chief, Enforcement Bureau Date:
Date:
_________________________
1 Notice of Apparent Liability for Forfeiture, NAL
Acct. No. X3254-001 (Enforcement Bureau, Houston Office,
released January 13, 2000).
2 Robert L. Meyers, 15 FCC Rcd 8045 (Enf. Bur. 2000)