******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) File No.: EB-98-HU-147 Leonard D. Martin ) ) NAL/Acct. No.: X3254-003 Houston, TX ) MEMORANDUM OPINION AND ORDER Adopted: November 7, 2000 Released: November 9, 2000 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order (``Order''), we deny Leonard Martin's petition for reconsideration and affirm the Forfeiture Order1 issued against Leonard D. Martin in the amount of four thousand dollars ($4,000) for willfully and repeatedly violating Sections 301 and 303(n) of the Communications Act of 1934, as amended (``the Act''). 2 The noted violations involve Mr. Martin's operation of a two-way radio station without Commission authorization and his refusal to allow inspections of his radio installation. 2. On March 3, 2000, the Houston Resident Agent Office (``Houston Office'') issued a Notice of Apparent Liability for Forfeiture (``NAL'') in the amount of seventeen thousand dollars ($17,000) to Mr. Martin for the referenced violations.3 Mr. Martin filed a response to the NAL. On July 12, 2000, the Enforcement Bureau (``Bureau'') released a Forfeiture Order reducing the proposed forfeiture to $4,000. II. BACKGROUND 3. Mr. Martin is the former licensee of amateur station KC5WHN. By letter of November 3, 1998, the Commission notified Mr. Martin of complaints concerning a station identifying as KC5WHN. The complaints asserted that the station identifying as KC5WHN was operating on frequencies which were not authorized for that station. In his telephone response to that letter, Mr. Martin denied the alleged unauthorized operation. 4. On February 27, 1999, an agent from the Houston Office (``the agent''), using a mobile automatic direction finding (``MADF'') vehicle, observed voice radio transmissions on frequencies 27.535 and 27.545 MHz. Frequency 27.535 MHz is allocated exclusively to Industrial radio stations. Frequency 27.545 MHz is allocated exclusively to United States Government radio stations. The transmissions were unidentified, but the operator responded to the name ``Leonard.'' Using the MADF vehicle, the agent determined that the source of the transmissions was an antenna mounted on the residence at 4415 Spellman, Houston, Texas, which was then the address of record for Mr. Martin's amateur service station. There was no record of a Commission authorization permitting Mr. Martin to operate on 27.535 MHz or 27.545 MHz. 5. On March 15, 1999, the agent, using an MADF vehicle, observed voice radio transmissions on 27.370 MHz, a frequency allocated as a ``guard'' frequency between authorized channels in the Citizens Band Radio Service. The operator identified himself as ``Leonard.'' Using the MADF vehicle, the agent determined that the source of the transmissions was a vertical antenna mounted on the residence at 4415 Spellman, Houston, Texas. Immediately after his monitoring observations, the agent knocked on the door of the residence. Mr. Martin answered the door and refused the agent's request to inspect the radio station located in the residence. The agent informed Mr. Martin that his previously observed operation on 27.535 and 27.545 MHz was unlicensed and in violation of Section 301 of the Act because Mr. Martin held no Commission authorization to operate on those frequencies. The agent also informed Mr. Martin that his refusal to allow an inspection constituted violation of Section 303(n) of the Act. 6. On April 2, 1999, the Houston Office issued Mr. Martin an Official Notice of Violation (``NOV'') for violations of Sections 301 and 303(n) of the Act. In Mr. Martin's April 7, 1999, response to the NOV, he stated: ``I now fully understand that operation on the frequencies outlined is a violation ... that the FCC has the authority to inspect all radio installations... [and] ... I promise no further action by the Commission will be necessary to insure my complete compliance with the FCC Rules....'' 7. On July 22, 1999, Mr. Martin submitted his amateur service license for KC5WHN to the Commission for cancellation. By letter of July 23, 1999, the Commission acknowledged receipt of the license, and confirmed that it was cancelled effective July 23, 1999. The letter also warned Mr. Martin that any unlicensed radio operation would constitute violation of Section 301 of the Act. 8. On October 19, 1999, the agent investigated an interference complaint against Mr. Martin. The agent, using an MADF vehicle, observed voice radio transmissions on frequency 27.535 MHz, and determined that the source of those transmissions was a vertical antenna mounted on Mr. Martin's residence, at 4415 Spellman, Houston, Texas. This frequency is allocated exclusively to licensed Industrial radio stations. There was no record of a Commission authorization permitting Mr. Martin to operate on 27.535 MHz. 9. On October 26, 1999, the agent, using an MADF vehicle, observed voice radio transmissions on 27.455 MHz, a frequency allocated exclusively to Industrial radio stations. Using the MADF vehicle, the agent determined that the source of those transmissions was a vertical antenna mounted on Mr. Martin's residence, at 4415 Spellman, Houston, Texas. There was no record of a Commission authorization permitting Mr. Martin to operate on 27.455 MHz. Immediately after the monitoring, the agent knocked on the door of the residence and requested permission to inspect the station located there. Mr. Martin, who answered the door, refused to allow an inspection. 10. On March 3, 2000, the Houston Office issued a NAL in the amount of $17,000 to Mr. Martin for violations of Sections 301 and 303(n) of the Act. In his response to the NAL, Mr. Martin requested cancellation of the proposed forfeiture but did not deny violating Sections 301 and 303(n). 11. In its Forfeiture Order, released July 12, 2000, the Bureau concluded that Mr. Martin willfully and repeatedly violated Section 301 of the Act by operating radio transmitting apparatus without authorization on February 27, October 19, and October 26, 1999; and that he willfully and repeatedly violated Section 303(n) of the Act by refusing to make his radio installation available for inspection on March 15 and October 26, 1999. The Forfeiture Order assessed a monetary forfeiture of $4,000 for those violations. The sole basis for reducing the $17,000 forfeiture amount proposed by the NAL to $4,000 was Mr. Martin's inability to pay more than $4,000. 12. In his petition for reconsideration of the Forfeiture Order, Mr. Martin still does not deny operating radio transmitting apparatus without authorization or refusing to make his radio installation available for inspection. However, he propounds the following arguments for reduction or rescission of the forfeiture: (a) The Commission ``failed to comply with its own procedures.'' Specifically, Mr. Martin asserts that, when an FCC agent requested permission to inspect his radio installation, the agent ``did not provide [Mr. Martin] proper notice to inspect [Mr. Martin's] communications devices or of any pending investigation, or allow [Mr. Martin] an opportunity to have an attorney present'' and did not allow sufficient time for Mr. Martin ``to exercise [his] rights as a U.S. Citizen to review any FCC rule or federal law that would permit unwarranted entry into [his] residence by the FCC.'' (b) The Forfeiture Order ``is based upon unsubstantiated allegations with insufficient evidentiary support.'' In particular, Mr. Martin contends that another station near his residence ``could have been'' the source of the transmissions observed by the FCC agent and that there is insufficient proof that Mr. Martin was the operator the station observed by the FCC agent. (c) The forfeiture amount is ``grossly disproportionate to the alleged violations.'' Specifically, Mr. Martin asserts that the forfeiture amount of $4,000 is unreasonable ``given the nature and extent of the alleged violations.'' Mr. Martin also contends that the Bureau did not consider all the required mitigating factors. According to Mr. Martin, these include: the number of occurrences; the corrective measures Mr. Martin agreed to take; Mr. Martin's ability to pay; and ``the fact that no licensed radio station complained of interference nor was there any proof of actual harm caused by any radio transmission from [Mr. Martin's] residence.'' (d) The Commission, by imposing a forfeiture against Mr. Martin, has exceeded its authority to regulate interstate communications under the Commerce Clause of the Constitution. Mr. Martin argues that, although Section 301(d) of the Act authorizes the Commission to regulate radio communications within one state as well as between states, the statute must be interpreted and applied in a manner consistent with constitutional limitations. In particular Mr. Martin claims that, because there has been no showing that his transmissions were capable of causing harmful interference to interstate communications, he cannot be prohibited from making those transmissions without a license. (e) The prohibition of transmissions by Mr. Martin on frequencies for which he is not authorized and the imposition of a monetary forfeiture against Mr. Martin for making such transmissions violate the First Amendment to the United States Constitution. (f) The imposition of a forfeiture against Mr. Martin without an opportunity for a hearing or ``to remedy [Mr. Martin's] alleged violation Section 301 of the Communications Act'' violates the Due Process clause of the Fourteenth Amendment to the United States Constitution. (g) The Commission is violating the Due Process clause of the Fourteenth Amendment to the United States Constitution by ``selectively'' initiating a forfeiture proceeding against Mr. Martin and ``not targeting thousands of other stations'' which operate without authorization. III. DISCUSSION 13. We reject the arguments made in Mr. Martin's petition for reconsideration: (a) The agent who requested permission to inspect Mr. Martin's radio installation on March 15 and October 26, 1999, followed proper procedures. On both occasions the agent informed Mr. Martin that Section 303(n) of the Act authorizes the Commission to inspect radio installations and that the agent had traced transmissions on frequencies for which Mr. Martin was not authorized to Mr. Martin's residence. Immediate, on-the-spot inspections are necessary in such circumstances because ``Any delay . . . can result in changed conditions of the transmitting equipment or its operation, adversely affecting the efficiency of inspections." Ralph Yago, 35 FCC 113, 125 (Rev.Bd. 1963). Further, nothing in the Communications Act requires the Commission to allow a subject of an inspection to have opportunity to have an attorney present during a civil investigation proceeding. (b) The Bureau's conclusion that Mr. Martin operated radio transmitting apparatus without authorization on February 27, October 19, and October 26, 1999, is supported by substantial evidence. On each occasion, the agent determined electronically that transmissions on a frequency or frequencies for which Mr. Martin was not authorized emanated from an antenna installed at Mr. Martin's residence. The only person observed at Mr. Martin's residence on any of these occasions was Mr. Martin. Mr. Martin has had ample opportunity to provide information, if it exists, which shows that another person operated the station located at his residence; but he has not done so. During the transmissions observed on February 27, 1999, the operator of the station located at Mr. Martin's residence responded to the name ``Leonard.'' (c) As the NAL explicitly states, the forfeiture amount in this case was assessed in accordance with Section 503(b) of the Act,4 Section 1.80 of the Rules,5 and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy Statement''). Section 503(b) of the Act requires that, in examining Mr. Martin's response, 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.6 In the Forfeiture Order, we considered all factors applicable to this matter and reduced the monetary forfeiture from $17,000 to $4,000 on the basis of Mr. Martin's inability to pay a larger amount. Mr. Martin has not furnished any information which justifies a further reduction. (d) Mr. Martin's Commerce Clause argument is dependent on the incorrect assumption that transmissions emanating from his residence on 27.445, 27.535 and 27.545 MHz are not capable of interfering with interstate communications. In fact, transmissions on those frequencies are capable of long range (interstate) propagation through the natural phenomenon known as sky (``skip'') wave. Furthermore, the view that the Commission cannot constitutionally regulate communications unless they are capable of interfering with interstate communications is erroneous. See National Broadcasting Co. v. United States, 319 U.S. 190, 209-217 (1943); FCC v. League of Women Voters of California, 468 U.S. 364, 377 (1984); and Stephen Paul Dunifer, 11 FCC Rcd 718, 727 (1995). (e) The prohibition against unlicensed operation does not abridge Mr. Martin's First Amendment rights. The United States Supreme Court has held repeatedly that there is no constitutional right to use radio facilities without a license. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969); and National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943). (f) . The Commission did not abridge Mr. Martin's right to procedural Due Process by failing to provide opportunities for an evidentiary hearing and for correction of the violations prior to the imposition of the forfeiture. Sections 503 and 504 of the Communications Act7 provide safeguards which satisfy Due Process requirements.8 See Stephen Paul Dunifer, 11 FCC Rcd 718, 729 (1995). Further, nothing in the Communications Act requires the Commission to provide an unlicensed operator the opportunity for an evidentiary hearing or an opportunity to correct a violation prior to imposition of a forfeiture. (g) The Commission did not abridge Mr. Martin's right to procedural Due Process by proceeding against him ``selectively.'' The case against Mr. Martin arose from the routine investigation of a complaint. As the Commission stated in KMAP, Inc., 46 FCC 2d 978 (1974): ``While our limited resources may result in some violators going unpunished, that does not mean that we cannot impose sanctions against those violators we do find.''9 14. We have examined Mr. Martin's petition for reconsideration pursuant to the statutory factors set forth above, and in conjunction with the Policy Statement as well. As a result of our reconsideration, we conclude that Mr. Martin has failed to provide a sufficient justification for rescission or further reduction of the forfeiture. IV. ORDERING CLAUSES 15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 1.106 of the Rules, Mr. Martin's petition for reconsideration IS DENIED and the Forfeiture Order, 15 FCC Rcd 12699 (Enf. Bur. 2000), released on July 12, 2000, IS AFFIRMED. 16. Payment of the forfeiture of $4,000 shall be made in the manner provided for in Section 1.80 of the Rules within 30 days of the release of this Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for collection pursuant to Section 504(a) of the Act.10 Payment may be made by mailing a check or similar instrument, payable to the order of the ``Federal Communications Commission,'' to the Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should note ``NAL/Acct. No. X3254-003'' referenced above. Requests for full payment under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12th Street, S.W., Washington, D.C. 20554.11 17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by Certified Mail -- Return Receipt Requested, to Mr. Leonard D. Martin at 4415 Spellman, Houston, Texas 77035. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 Forfeiture Order, 15 FCC Rcd 12699 (Enf. Bur. 2000). 2 47 U.S.C. §§ 301 and 303(n). 3 Notice of Apparent Liability for Forfeiture, NAL Acct. No. X3254-003 (Enf. Bur., Houston Office, released March 3, 2000). 4 47 U.S.C. § 503(b). 5 47 C.F.R. § 1.80. 6 7 47 U.S.C. § 503(b)(2)(D). 7 47 U.S.C. §§ 503 and 504. 8 Specifically, the NAL must specify the rules alleged to be violated, the facts upon which the charge against the named violator is based, and the date upon which the alleged violation occurred. Additionally, the party is given an opportunity to respond to the NAL and to have a trial de novo. 47 U.S.C. §§ 503(b)(5), 504(a), (b). See Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C.Cir.1977). 9 46 FCC 2d at 979 10 47 U.S.C. § 504(a). 11 See 47 C.F.R. § 1.1914.