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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Daniel Clephar ) File No.:
EB-02-TP-650
2816 Pioneer Road, Apartment 4 ) NAL/Acct. No.
200332700020
Orlando, Florida 32808 ) FRN 0008369522
MEMORANDUM OPINION AND ORDER
Adopted: August 29, 2005 Released: September 14,
2005
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed by
Daniel Clephar (``Mr. Clephar''). Mr. Clephar
seeks reconsideration of the Forfeiture Order1 in
which the Chief, Enforcement Bureau, found him
liable for a monetary forfeiture in the amount of
$10,000 for violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').2
The noted violation involves Mr. Clephar's
operation of a radio station on the frequency 92.7
MHz without Commission authorization.
II. BACKGROUND
2. On December 6, 2002, two agents from the Commission's
Tampa, Florida Field Office ("Tampa Office")
working in the Orlando, Florida area detected an
FM radio station operating on the frequency 92.7
MHz. The voice on the broadcast identified the
station as ``Radio Maximo.'' Using direction-
finding equipment and techniques, the agents
determined that the station was broadcasting from
4816 Tam Drive, Orlando, Florida. The agents took
field strength measurements of the station's
signal and determined that the station's operation
was such that it required a license. The
Commission's records showed that no license had
been issued for this operation. The agents traced
the location of the station's signal to Mr.
Clephar's residence. The agents inspected the
station in the garage attached to the residence,
found that the transmitter was tuned to 92.7 MHz,
and identified Mr. Clephar's voice as the same one
they heard identify the station on the air as
``Radio Maximo.''
3. On April 14, 2003, the District Director of the Tampa
Office issued Mr. Clephar a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount
of $10,000 for apparent willful violation of
Section 301 of the Act.3 Mr. Clephar did not file
a response to the NAL. The Chief of the
Enforcement Bureau issued a Forfeiture Order on
November 3, 2003, based on the record before the
Bureau, affirming the forfeiture proposed by the
NAL. Mr. Clephar sought reconsideration of the
Forfeiture Order. Therein, Mr. Clephar denied
that he was operating a radio station, claiming
that he was merely ``testing the equipment,'' and
stated that he does not have the ability to pay
the $10,000 forfeiture penalty assessed. Mr.
Clephar's reconsideration request did not include
any financial information.
III. DISCUSSION
4. Mr. Clephar's denial that he was operating a radio
station appears to be contradicted by his own
admission that he had the equipment and was only
testing it, and by the investigation conducted by
the agents in the Tampa Office. There is no
``testing'' exemption to Section 301 of the Act.
The agents heard Mr. Clephar's voice on the radio,
and observed equipment set up for a radio station
at Mr. Clephar's premises that was tuned to the
frequency which the agents' tracking devices
registered. Thus, Mr. Clephar's statement does
not comport with the factual findings in the
record. Moreover, because Mr. Clephar's statement
that he is unable to pay the forfeiture is
unsupported by any documentation,4 there is no
demonstrated inability to pay and thus no basis
for reduction of the forfeiture amount.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act and Section 1.106 of the
Rules, Mr. Clephar's petition for reconsideration
IS DENIED.
6. IT IS FURTHER ORDERED that, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules,6 Mr. Clephar
IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $10,000 for violating Section 301 of the Act.
7. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules7
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.8 Payment may be made
by credit card to the Commission's Credit and Debt
Management Center at (202) 418-1995 or by mailing
a check or similar instrument, payable to the
order of the 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 Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.9
8. IT IS FURTHER ORDERED THAT this Order shall be sent by
regular mail and by certified mail, return receipt
requested, to Mr. Daniel Clephar, 2816 Pioneer
Road, Apartment 4, Orlando, Florida 32808.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
_________________________
1 See Daniel Clephar, 18 FCC Rcd 22914 (Enf. Bur. 2003).
2 47 U.S.C. § 301.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700020 (Enf. Bur., Tampa, Florida Office, released April
14, 2003).
4 Paragraph 10 of the NAL stated that the Commission will not
consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the petitioner provides certain
federal tax returns, financial statements or other reliable
documentation accurately reflecting the petitioner's current
financial status.
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.