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Before the Federal Communications Commission Washington, D.C. 20554 ) )
) In the Matter of ) File Number EB-07-TP-095
Richard Ross ) NAL/Acct. No. 200732700011 Titusville, FL ) FRN: 001-73713-29 ) ) )
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.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules, Richard Ross, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for violation of Section 301 of the Act.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Richard Ross, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
17. Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Account Number and FRN Number referenced above. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters "FORF" in block number 24A (payment type code). Requests for full payment under an installment plan should be sent to:
Chief Financial Officer -- Financial Operations,
445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.
Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: [LINK POSTED BY MEMBER] Only Members Can View This Truck Forum Link. with any questions regarding payment procedures.
18. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, South Central Region, Tampa Office, 2203 N. Lois Avenue, Suite 1215, Tampa, Florida, 33607 and must include the NAL/Acct. No. referenced in the caption.
19. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices ("GAAP"); or (3) some other reliable and objective documentation that accurately reflects the petitioner's current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted.
20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Richard Ross at his address of record. FEDERAL COMMUNICATIONS COMMISSION Ralph M. Barlow District Director Tampa Office South Central Region Enforcement Bureau 47 U.S.C. S: 301. 47 U.S.C. S: 503(b). Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'repeated', when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day." 47 C.F.R. S: 95.404. 47 C.F.R. S: 95.409(a). 47 C.F.R. S: 95.410. 47 C.F.R. S: 95.411(a). 47 C.F.R. S: 95.411(b). See 47 C.F.R. S: 95.410. 47 C.F.R. S: 95.423(a) 47 C.F.R. S: 95.423(b) 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S:1.80. 47 U.S.C. S: 503(b)(2)(E). 47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80. (...continued from previous page) (continued....) Federal Communications Commission
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10 METER UNLICENSED TRUCKER DINGED BY THE FCC
A follow-up to our story two weeks ago about the
invasion of 10 meters by Freeband operators and
truckers using illegal C-B radio gear. The FCC
has now acted in one case where truckers have
been found to have illegally taken up operation
on 28.085 MHz and is warning the company it will
face stiff fines if the pirate operation does not cease.
The target of the FCC enforcement action is
Tennessee Steel Haulers of Nashville,
Tennessee. In a letter to the company the FCC
says that it has evidence that at least one of
Tennessee Steel Haulers drivers had been
operating radio equipment on 28.085 MHz without a
license and causing interference to licensed
stations in the Ten Meter Amateur
Band. Specifically that this past May 3rd the
driver was observed on Interstate 85 in Gastonia,
North Carolina, at 6:40 P.M. while operating the radio gear.
Tennessee Steel Haulers were warned that this
type of unlicensed operation is a direct
violation of Section 301 of the Communications
Act of 1934. The penalty for such operations
includes the possibility of seizure of any
non-certified radio transmitting equipment along
with a hefty fine or even time in jail. The
company was also instructed to contact FCC
Special Counsel Riley Hollingsworth to discuss the issue with him.
The hams don't really CARE what drivers do ON the CB band so long as they don't interfere with THEM. It's when the temptation to operate ON the actual 10 Meter band becomes too great and the drivers think they now have some "extree channels" free for their use. The hams WILL document your activities on 10 Meters and turn drivers in for operating there without the required license. Often what clues the hams in, is the area that drivers most often use happens to be in the Morse Code portion of the band where NO voice is used at all. Not even the hams are allowed to use phone there, and the truckers stick out like sore thumbs. Makes 'em easier to catch, too.
So, yes, If you are bound and determined to use an illegal (and crappy) "10 Meter" radio, simply keep it ON CB and KNOW where you are transmitting. There's a BUNCH of CBers (and truckers) who have been caught and/or FINED heavily for yapping on 10 M. Just a word of caution.
Some of the so called 10 meter radios are actually CB radios made for the Europian market and will transmit on the 10, 11, & 12 meter bands. It's only in North America that CB is limited to 40 channels. Most of the Europian radios are channel bound, and are not tunible, some are AM & FM, some are AM, FM, & Side band, few are true all mode.
Some people think that because the FCC isn't out in force that they can get away with doing what they want. I've seen FCC in weigh stations, conficating radios and amps. I helped the highway patrol arrest a guy for malisious interference that resulted in the death of a woman because he keyed over someone who was calling for help when she had a heart attack, The moron in question got 2.5 years in federal prison and 2.5 years home confinement, and is perminately banned from operating a transmitter in the United States.
That's all fine and good. But if I decide to get a 10 meter radio I paln on operating it legally. License and all. I know some truckers think channel 19 on their 10 meter equals channel 19 on their CB, when I believe this preset frequency falls in the morse code area. I am aware of the rules, just asking a question about the radios. So before anyone jumps in and wants to call me another dumb trucker, perhaps they should not be so quick to judge.
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11.14.2008
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