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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-04-TP-560
Jeremy R. Riels )
Cross City, Florida ) NAL/Acct. No.200532700008
)
) FRN 0013442918
)
FORFEITURE ORDER
Adopted: August 29, 2005
Released: August 31, 2005
By the Regional Director, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six hundred fifty
dollars ($650) to Jeremy R. Riels for willful violation of
Section 301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Mr. Riels's
operation of a radio transmitter on 156.875 MHz (VHF marine
channel 77) without Commission authorization.
II. BACKGROUND
2. In response to a complaint filed by the United
States Coast Guard (``USCG''), the Tampa Office of the
Enforcement Bureau (``Tampa Office'') initiated an
investigation into the unauthorized use of marine VHF
frequencies in and around the USCG receive site in Dixie
County, Florida. On December 8, 2004, agents from the Tampa
Office monitored a signal on 156.875 MHz (VHF marine channel
77) and heard a conversation between hunters about the
location of their hunting dogs in the forest. The agents
used radio direction finding techniques to determine that
the source of the signal on 156.875 MHz was coming from a
1997 brown Silverado Chevrolet pickup truck in Dixie County,
Florida. The agents observed a radio transmitter installed
in the vehicle. Mr. Riels, the driver and only occupant of
the vehicle, was questioned and admitted to operation of the
radio transceiver installed in his vehicle. He stated that
he used this radio, as opposed to a CB radio, which could be
used legally, because the CB band had too much interference.
A search of Commission records provided no authorization for
Mr. Riels to operate on this frequency.
3. On May 9, 2005, the Tampa Office issued a Notice
of Apparent Liability for Forfeiture to Mr. Riels in the
amount of ten thousand dollars ($10,000) for the apparent
willful violation of Section 301 of the Act.2 Mr. Riels
filed a response to the NAL on June 8, 2005, requesting
cancellation or reduction of the forfeiture based on
inability to pay.
III. DISCUSSION
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,3
Section 1.80 of the Commission's Rules (``Rules''),4 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) (``Forfeiture Policy Statement''). In
examining Mr. Riels' response, Section 503(b) of the Act
requires that 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.5
5. Section 301 of the Act states 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 issued by the Commission.6 The frequency 156.875
MHz has been assigned to VHF Marine Channel 77 for maritime
services.7 Section 80.373(f) of the Rules specifies that
VHF Marine Channel 77 may only be used for ship to ship
communications.8 Section 80.13 of the Rules states that
stations in the maritime service must be licensed either
individually or by fleet.9 Ship stations may also be
licensed by rule under certain circumstances without an
individual license.10 However, ship stations are defined as
those radio stations located on vessels not permanently
moored.11 On December 8, 2004, agents from the Tampa Office
determined that Mr. Riels operated a radio transmitter on a
VHF marine channel from a land-based vehicle. Mr. Riels
admitted to operating the radio transmitter. Mr. Riels
states in his response to the NAL that he did not know it
was illegal to use a radio transmitter in this way and that
many hunters in the area engage in the same activities. A
violator need not intend to violate the Act or the Rules or
to cause interference for a violation to be willful.12 Mr.
Riels deliberately operated his radio transmitter on 156.875
MHz. The Commission's records showed that Mr. Riels did not
have a license to operate this station and does not qualify
to be licensed by rule. Thus, based on the evidence, we
find that Mr. Riels willfully13 violated Section 301 of the
Act by operating a radio transmitter without the required
authorization from the Commission on December 8, 2004.
6. In his response to the NAL, Mr. Riels asserts that
a $10,000 forfeiture would produce a financial hardship and
requests that the forfeiture be cancelled or significantly
reduced. The Commission has determined that, in general, an
entity's gross revenues are the best indicator of its
ability to pay a forfeiture.14 After reviewing Mr. Riel's
tax returns, we conclude that a reduction of the forfeiture
to $650 would be appropriate.
7. We have examined Mr. Riels' response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Mr. Riels willfully violated
Section 301 of the Act. Although cancellation of the
proposed monetary forfeiture is not warranted, reduction of
the forfeiture amount to $650 is appropriate based on Mr.
Riels' demonstrated inability to pay.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,15 Jeremy R. Riels IS LIABLE FOR A
MONETARY FORFEITURE in the amount of six hundred fifty
dollars ($650) for willfully violating Section 301 of the
Act.
9. Payment of the forfeiture 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.16 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.17
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Jeremy R. Riels at his address of
record.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis P. Carlton
Regional Director, South
Central Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532700008 (Enf. Bur., Tampa Office, May 9, 2005)
(``NAL'').
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 301.
7See 47 C.F.R. § 80.373(f).
8Id.
947 C.F.R. § 80.13.
1047 C.F.R. § 80.13(c).
11See 47 C.F.R. §§ 80.5, 80.13.
12See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
13Section 312(f)(1) of the Act, 47 U.S.C. § 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,' ... 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).
14See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's
gross revenues); Local Long Distance, Inc., 16 FCC Rcd
24385 (2000) (forfeiture not deemed excessive where it
represented approximately 7.9 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 15 FCC
Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's
gross revenues).
1547 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1647 U.S.C. § 504(a).
17See 47 C.F.R. § 1.1914.