******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Leslie D. Brewer ) NAL Acct. No. 615TP0002 Tampa, Florida ) ORDER Adopted: August 14, 1997 Released: August 29, 1997 By the Commission: I. INTRODUCTION 1. Leslie D. Brewer (Mr. Brewer) has filed an application for review, seeking review of the monetary forfeiture of $1,000 assessed under Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 503(b), for willful and repeated violation of Section 301 of the Act, 47 U.S.C.  301. The forfeiture was assessed for unauthorized operation of an FM radio station on 102.1 MHz. For the reasons noted below, we deny the application for review and affirm the forfeiture of $1,000. II. BACKGROUND 2. On January 11, 1996, the Compliance and Information Bureau's Tampa Field Office intercepted radio broadcast transmissions on 102.1 MHz. Using close-in direction finding techniques, FCC agents located the station at 6122 Liberty Avenue, Tampa, Florida. On January 12, 1996, engineers from the Tampa Field Office inspected the radio station. Although Mr. Brewer was not at home at the time, his wife contacted him by telephone to explain that agents had requested to inspect the station, and he permitted the inspection to take place. At the FCC agents' request, Mr. Brewer instructed his wife how to turn the station off, which she did. The FCC agents warned Mr. Brewer about operating a radio station without authorization, both verbally, on January 12, 1996, and in writing, on January 17, 1996. 3. On January 29, 1996, the Tampa Field Office received a letter from Mr. Brewer stating that the station had been on the air for approximately five years. He also stated that he had corrected the excessive transmitter power and that operation of his station would be within the guidelines for low power radio broadcast operations, as set out in Part 15 of the Commission's rules. On February 16, 1996, engineers from the Tampa Field Office conducted a follow-up investigation to verify the proper operation of Mr. Brewer's transmitter. Measurements taken about 250 meters away by FCC personnel indicated a field strength of 5,500 uV/m (microvolts per meter). This power level is beyond that authorized in Part 15 of the Commission's rules. 4. On April 3, 1996, the Tampa Field Office issued a Notice of Apparent Liability (NAL) to Mr. Brewer in the amount of $1,000, for unauthorized operation of a radio broadcast station in contravention of Section 301 of the Act, 47 U.S.C.  301. The NAL cited Section 15.209(a) of the rules, which generally prohibits power emissions in excess of 150 uV/m at a measured distance of 3 meters. 47 C.F.R.  15.209(a). On May 6, 1996, the Tampa Field Office received a response to the NAL from Mr. Brewer. In that response, Mr. Brewer argued that the FCC engineers' measurement techniques lacked precision. He further questioned the "training and competency of the engineering personnel" who performed the tests. Mr. Brewer also argued that a direct conflict exists between Sections 15.209(a) and 15.239(b) of the Commission's rules in terms of specifying what are the authorized power levels. 5. On June 19, 1996, the Tampa Field Office issued a Forfeiture Order to Mr. Brewer in the amount of $1,000. The Forfeiture Order addressed Mr. Brewer's arguments concerning the alleged lack of precision in the FCC engineers' measurement techniques, and his challenge to the technical competence and training of the FCC engineers who made the field strength measurements. The Order stated that the FCC engineers performed established investigative techniques used by Commission staff, and Mr. Brewer's challenge to the engineers' training was simply a late excuse for non-compliance with the Commission's rules. In this regard, the Forfeiture Order noted that Mr. Brewer did not challenge the FCC engineer's competence when they inspected his station on January 12, 1996, and also noted that Mr. Brewer stated in his January 29, 1996 letter to the Tampa office, his intention to comply with requirements of Part 15 of the rules. From the Forfeiture Order, Mr. Brewer now appeals to the Commission. In his application for review, Mr. Brewer again challenges the FCC agents' measurement techniques and training, and again raises the issue of a conflict between Sections 15.209(a) and 15.239(b) of the rules. In addition, Mr. Brewer raises several new issues which we will address below. III. DISCUSSION 6. Mr. Brewer contends that the field agents failed to meet procedural requirements such as presenting a warrant to enter his residence and inspect the radio station, as well as giving Miranda warnings to suspects prior to imposing a criminal penalty pursuant to Section 501 of the Act, 47 U.S.C.  501. We note that the Bureau's orders do not impose a criminal penalty under Section 501 of the Act but rather assess a civil monetary penalty pursuant to Section 503 of the Act, 47 U.S.C.  503. This civil penalty or administrative sanction is imposed for illegal operation of a radio station without the FCC authorization required by Section 301 of the Act, 47 U.S.C.  301. Thus, Mr. Brewer's arguments regarding criminal prosecution are wrong. 7. We also reject Mr. Brewer's contention that the FCC failed to show that he "willfully" transmitted a radio signal because he was not at home at the time of the January 12, 1996 inspection. Section 503(b) authorizes the Commission to impose forfeitures on individuals who violate the Commission's rules willfully or repeatedly. Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which also applies to the forfeiture provisions in Section 503(b) of the Act, provides that the 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 the Act or any rule or regulation of the Commission. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). The Commission need not show an intent to violate a rule before imposing a monetary penalty. It only needs to show that the acts that resulted in the violation were not accidental or unintentional acts. The record in this case clearly establishes that Mr. Brewer was in control of the station at the time of inspection, whether he was present or not. 8. The evidence in the instant case supports a finding that Mr. Brewer willfully and repeatedly violated Section 301 of the Act. As stated in the Commission's January 17, 1996, warning letter, Mr. Brewer's wife was at home at the time of the January 11, 1996 inspection and, with her help, engineers were able to contact Mr. Brewer by telephone. Mr. Brewer in turn made the station available for inspection, and instructed his wife how to turn off the station. Moreover, in his January 29, 1996, letter to the Commission, Mr. Brewer stated that the station had been operating for five years, and that he intended to comply in the future with the Part 15 technical requirements. On February 16, 1996, however, FCC engineers again determined that Mr. Brewer was exceeding the applicable power limits. Based on these facts, we conclude that Mr. Brewer's operation of the station was willful. The facts in this case, therefore, clearly satisfy the statutory requirements for issuing a fine under Section 503(b) of the Act. 9. Mr. Brewer questions whether the exception in Section 503(b)(5) allowing a NAL to be issued without a prior citation for persons "engaging in activities for which a license, permit, certificate, or other authorization issued by the Commission" applies to "low power broadcasting," and, by inference, the conduct in which he was engaged. It does. Section 503(b)(5) of the Act, 47 U.S.C.  503(b)(5), provides that a warning must be given initially to a party who is not a licensee unless the party is engaged in activities for which a license or some form of Commission authorization is required. Mr. Brewer was not operating a low power radio broadcast station in compliance with Part 15 of the Commission's rules. See 47 C.F.R.  15.239(b). On February 16, 1996, the FCC engineers measured the transmissions emanating from Mr. Brewer's radio broadcast station at 5,500 uV/m, a power level far greater than the 250 uV/m permitted without a license under Section 15.239(b) of the rules. Because Mr. Brewer needed a license from the Commission to transmit in accordance with the Act, the Commission was not required to send Mr. Brewer a warning prior to assessing a forfeiture. In the instant case, however, the Commission did warn Mr. Brewer about his operation before issuing the NAL, both verbally, on January 12, 1996, and in writing, on January 17, 1996. 10. Finally, we address Mr. Brewer's contentions about the power limits in question, and how they were measured. Power limits for types of transmitters are set forth in both Sections 15.209(a) and 15.239(b) of the Commission's rules. Mr. Brewer contends that a conflict exists between these sections. No such a conflict exists. Section 15.209(a) applies to unintentional radiators, and Section 15.239(b) applies to intentional radiators, such as the radio transmitter that Mr. Brewer was using. Although the NAL mistakenly cited the power limits for unintentional radiators, rather than that for intentional radiators, we conclude this was a harmless error. The NAL specified that on February 16, 1996, FCC engineers measured the transmissions emanating from Mr. Brewer's radio station at 5,500 uV/m, a level which far exceeds the permissible 250 uV/m level specified in Section 15.239(b). Regardless of the technical section cited in the NAL, the power limits of Mr. Brewer's transmitter were such that operation without a license violated Section 301 of the Act. With respect to Mr. Brewer's arguments about the technical precision of the field strength measurements and the competency and training on the field engineers, we note that these issues were discussed fully previously and we will not disturb the Bureau's findings in this regard. We therefore affirm the forfeiture amount of $1,000. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), and Section 1.80 and 1.115(g) of the Commission's Rules, 47 C.F.R.  1.80 and 1.115(g), the Application for Review is DENIED. 12. IT IS FURTHER ORDERED, that Leslie D. Brewer must pay the forfeiture amount of one thousand dollars ($1,000) within thirty (30) days of the date of release of this Order. Forfeitures shall be paid by check or money order drawn on a United States financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. Please place NAL/Acct. 615TP0002 on the remittance and mail it to: Federal Communications Commission P. O. Box 73482 Chicago, IL 60673-7482 Forfeiture penalties not paid within 30 days may be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 13. IT IS FURTHER ORDERED that this Order shall be sent by certified mail, return receipt requested, to Leslie D. Brewer. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary