NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: March 31, 2008 By the District Director, Tampa Office, South Central Region, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Richard Ross, apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended ("Act"), by operating an unlicensed radio transmitter. We conclude, pursuant to Section 503(b) of the Act, that Mr. Ross is apparently liable for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On June 4, 2007, in response to complaints of interference, agents from the Commission's Tampa Office of the Enforcement Bureau ("Tampa Office") inspected the Citizens Band ("CB") station located at Mr. Ross' residence. During testing of Mr. Ross' equipment, the agents determined that two of his CB radio transmitters were non-certificated transceivers, capable of transmitting on unauthorized frequencies. The agents also measured the output power for his transmitters and found them to be operating with seven and eight watts, respectively, output powers greater than authorized in the Commission's Rules ("Rules"). The agents orally warned Mr. Ross that use of non-certificated or modified equipment capable of transmitting on unauthorized frequencies and with greater power than authorized is strictly prohibited by the Rules and voided his authority to operate the CB station. Mr. Ross voluntarily surrendered both devices to the agents.
3. On July 10, 2007, in response to additional complaints of interference, the Tampa office sent an official letter, certified and regular mail, to Mr. Ross, restricting his hours of operation for his CB station. Specifically, the letter instructed Mr. Ross not to operate his CB station from 6 AM EST to 11:59 PM EST. On July 11, 2007, the Tampa office received a response to the official letter in which Mr. Ross claimed he was now in compliance with the rules.
4. On August 16, 2007, agents from the Tampa Office inspected Mr. Ross' CB station to confirm that his CB station was in compliance with the Rules. The agents found that Mr. Ross' CB radio station included a CB transmitter and two linear amplifiers. The agents measured the power of the CB transmitter and found it had an average power output of 3.5 watts carrier power. They tested the amplifiers combined power output and found the devices had the capability to boost the power of the station to several hundred times the authorized power level. The agents orally warned Mr. Ross that the use of linear amplifiers or any device that creates a power greater than the authorized limit is strictly prohibited by the Rules and voids the authority to operate the CB station. Mr. Ross voluntarily surrendered both linear amplifiers to the agents.
5. On November 20, 2007, in response to additional complaints of interference, at approximately 10:15 A.M., agents from the Tampa Office located the source of a strong signal on a CB radio channel using direction finding methods to Mr. Ross' residence. An agent recognized the voice of the transmissions to be that of Mr. Ross.
6. Still on November 20, 2007, agents from the Tampa Office inspected Mr. Ross CB station. A wattmeter measurement indicated the power of Mr. Ross' transmitter during the inspection to be two watts, under the maximum authorized power under the Rules. The agents then traced the coaxial cable from the output of the transmitter and found it was connected to a linear amplifier. Measurements taken with the amplifier connected to the CB transmitter indicated the amplifier had the capability to boost the power of the station to several hundred times the authorized power.
7. Still on November 20, 2007, the agents observed an open notebook. The notebook showed log entries that indicated that Mr. Ross made several long distance calls using his CB radio during that morning. The entries coincided with the times the agents, using direction finding techniques, traced transmissions originating from Mr. Ross' residence. The agents orally warned Mr. Ross that the use and possession of the linear amplifier and operating out of the authorized hours prescribed on the official letter issued on July 10, 2007 violated the Rules and voided his authority to operate the CB station.
III. DISCUSSION
8. 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. The term "willful" as used in Section 503(b) of the Act has been interpreted to mean simply that the acts or omissions are committed knowingly. The term "repeated" means the commission or omission of such act more than once or for more than one day.
9. Section 301 of the Act requires 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 do not require an individual license to operate a CB station because they are authorized by this rule to operate in accordance with the rules in this subpart. Individuals operating, pursuant to this provision, however, must operate their CB stations in accordance with the rules in this subpart.
10. Section 95.409(a) of the Rules states that you must use an FCC certificated CB transmitter at your CB station and that the use of a transmitter, which is not FCC certificated voids your authority to operate the station.
Section 95.410 of the Rules states that your CB station transmitter power output must not exceed ... under any conditions: 4 watts (carrier power). Use of a transmitter which has carrier power in excess of that authorized voids your authority to operate the station.
On June 4, 2007, agents from the Tampa Office determined that Mr. Ross operated his CB station with two non-certificated transmitters that had a power output of seven and eight watts (carrier power), respectively. On June 4, 2007, Mr. Ross was warned that operation of his CB station with a non-certificated transmitter and with a power level greater than authorized violated the Rules and voided his authority to operate his CB station.
11. Section 95.411(a) of the Rules states that you may not attach external radio frequency (RF) power amplifiers to your certificated CB transmitter 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 your authority to operate the station. The Commission will presume that you have used a power amplifier if it is in your possession and if there is other evidence of overpower operation.
On August 16, 2007, and on November 20, 2007, agents from the Tampa Office observed that Mr. Ross had attached linear amplifiers to his CB station. Immediately prior to the inspection on November 20, 2007, the agents observed Mr. Ross' CB station in operation. On August 16, 2007 and November 20, 2007, the agents determined that the amplifiers attached to Mr. Ross' CB station had the capability to boost the power of the station to several hundred times the authorized power level. On August 16, 2007, and November 20, 2007, Mr. Ross was warned that attaching linear amplifiers to his CB station violated the Rules and voided his authority to operate his CB station.
12. Section 95.423(a) of the Rules states that if the FCC tells you that your CB station is causing interference for technical reasons you must follow all instructions in the official FCC notice. Section 95.423(b) of the Rules states that you must comply with any restricted hours of CB station operation which may be included in the official notice. On July 10, 2007, the Tampa Office sent an official letter, certified and regular mail, to Mr. Ross. In the official letter Mr. Ross was instructed not to operate his CB station from 6 AM EST to 11:59 PM EST.
On November 20, 2007, the agents observed Mr. Ross operating his CB station out of the authorized hours (approximately 10:15 AM) established in the July 10, 2007 official letter. 13. Because Mr. Ross violated several sections of Part 95, Subpart D of the Rules, Mr. Ross voided his authority to operate his CB station pursuant to Section 95.404 of the Rules. Therefore, based on the evidence before us, we find that on June 4, August 16, and November 20, 2007, Mr. Ross willfully and repeatedly violated Section 301 of the Act by operating a radio transmitter, his CB station, without authorization from the Commission.
14. Pursuant to The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base forfeiture amount for operating without an instrument of authorization is $10,000. 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, and history of prior offenses, ability to pay, and other such matters as justice may require. Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that Mr. Ross is apparently liable for a $10,000 forfeiture.
Originally Posted by KB3ZGV
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