******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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 Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) James Lee Gaskey ) NAL/Acct. No. 915KC0002 5215 N. Pine Street ) Davenport, Iowa 52806 ) FORFEITURE ORDER Adopted: December 29, 1999 Released: December 30, 1999 By the Chief, Enforcement Bureau: 1. In this order, we issue a monetary forfeiture in the amount of $11,000 against James Lee Gaskey for willful violation of Section 301 of the Communications Act of 1934, as amended (``the Act''), 47 U.S.C. § 301. The noted violation involves radio operation without a license. 2. On April 28, 1999, the Commission's Kansas City, Missouri Field Office, pursuant to Section 503(b) of the Act, 47 U.S.C. § 503(b), and Section 1.80 of the Commission's Rules (``the Rules''), 47 C.F.R. § 1.80, issued the referenced Notice of Apparent Liability (``NAL'') for a monetary forfeiture in the amount of $11,000 to Mr. Gaskey for the noted violation. A response to the NAL was filed on behalf of Mr. Gaskey by his attorney on June 1, 1999. For the reasons discussed below, we affirm the $11,000 forfeiture amount. BACKGROUND 3. On August 10, 1998, the Office of the Chairman of the Federal Communications Commission (``FCC'') received a complaint concerning interference to home electronic entertainment equipment, allegedly caused by a Citizen's Band (``CB'') radio station. The complainant specifically named James Gaskey, of 5215 N. Pine Street, Davenport, Iowa, as the operator of the CB radio station that was causing the interference. The complainant stated that Mr. Gaskey had CB radio stations in both his home and his pickup truck. 4. On September 14, 1998, in response to the complaint of interference, an FCC agent from the Kansas City Field Office issued a letter to the radio operator at 5215 N. Pine Street, Davenport, Iowa, via certified mail, return receipt requested. The letter informed the operator of the regulations against unlicensed operation of radio equipment and the use of external RF amplifiers and non-type accepted radio equipment in the CB service. The letter also notified him that the penalties for unlicensed operation could include a fine of up to $11,000 and directed the operator to submit a written response to the Kansas City Field Office within 10 days of the receipt of the letter. According to the signed return receipt from the U.S. Postal Service, dated September 16, 1998, Marge Gaskey was the recipient of the warning letter. Although the Kansas City Field Office received the return receipt card from the United States Post Office, the Kansas City Field Office did not receive a written response to the warning letter. 5. On October 5, 1998, the Kansas City Field Office issued a Notice of Violation (``NOV'') to Mr. James Gaskey and/or Marge Gaskey for failure to respond to the letter dated September 14, 1998. See 47 C.F.R. § 95.422. On October 15, 1998, the Kansas City Field Office received a response from Mr. Gaskey to the NOV. In his response, Mr. Gaskey denied having an amplifier ``in line'' at his radio station, and stated that he would shut the base station down until he had time to verify whether the interference problem had ceased. 6. On April 8, 1999, FCC agents from the Kansas City Field Office used direction finding techniques to locate the source of a very strong, wide-banded signal operating on 26.835 MHz.1 Using an FCC direction finding vehicle, the agents located the source of the transmissions on 26.835 MHz and traced them to 5215 N. Pine Street, Davenport, Iowa. After locating the source of the transmissions, the agents knocked on the door of the residence and were greeted by Mr. Gaskey, who later identified himself with an Iowa driver's license. Mr. Gaskey permitted the FCC agents to enter the residence and inspect the station. During the inspection, Mr. Gaskey admitted that he was operating the station without an authorization. The unlicensed station consisted of a non-certified radio transmitter connected to two external RF power amplifiers, a frequency counter, and an in-line watt meter capable of registering up to 5000 watts. The FCC agents determined that the station operating on 26.835 MHz had an output power of 200 watts. 7. Prior to knocking on the door of the residence, one of the FCC agents had noticed several unusual boxes connected to coaxial cable attached to an antenna in a 1996 Dodge pickup truck, Iowa License plate number 516 HER, which was parked in the driveway of the residence. After permitting the agents to inspect the radio station located inside the residence, Mr. Gaskey allowed the agents to inspect his pickup truck in the driveway. The agents discovered another radio station installed in Mr. Gaskey's truck. The agents found a mobile radio station in the truck, which was capable of operation on frequencies in the CB radio spectrum, and consisted of a non-type accepted radio transmitter connected to an external RF power amplifier and multimeter. Upon completion of the inspection, the agents issued Mr. Gaskey a warning letter, which informed him of the violation of Section 301 of the Act and ordered him to immediately discontinue the unlicensed operation. At the request of the FCC agents, Mr. Gaskey signed for receipt of the letter. 8. On April 28, 1999, the Kansas City Field Office issued the subject NAL to Mr. Gaskey for his continued unlicensed operation on 26.835 MHz from 5215 N. Pine Street, Davenport, Iowa, in violation of Section 301 of the Act. 9. On June 1, 1999, the FCC received Mr. Gaskey's response to the NAL. The response consisted of an undated document, entitled ``Statement of Income, Expenses, Assets & Liabilities For: James Lee Gaskey,'' a copy of the first page of Mr. Gaskey's 1995, 1996 and 1997 federal income tax returns, and a copy of Mr. Gaskey's letter previously received by the Kansas City Field Office on October 15, 1998. No other information was provided. The response did not refute the violation, nor did it specifically request a rescission or reduction of the monetary forfeiture amount. DISCUSSION 10. As the NAL explicitly states, the forfeiture amount in this case was assessed in accordance with Section 503 of the Act, Section 1.80 of the Rules, 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, FCC 99-407, (rel. Dec. 28, 1999) (``Policy Statement''). In examining Mr. Gaskey's 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. 47 U.S.C. § 503(b)(2)(D). 11. Section 301 of the Act explicitly prohibits entities from transmitting energy, communications or signals by radio except under and in accordance with the terms of the Act and of a license granted under the provisions of the Act. 47 U.S.C. § 301. In the instant case, Mr. Gaskey admitted during the April 8, 1999 inspection, that he operated a non-certified radio transmitter for his radio station on 26.835 MHz without a valid license. Thus, the violation was willful.2 12. Although Mr. Gaskey's response did not explicitly seek rescission or a reduction of the forfeiture amount, we presume his submission of the first page of his 1995, 1996 and 1997 tax returns and the ``Statement of Income, etc.'' were intended to demonstrate his inability to pay the forfeiture. However, the purported statement of income submitted fails to specify the year(s) for which the figures are applicable, and does not indicate how the figures were prepared. Also, the figures in the statement are not supported by any other documentation. With respect to the tax information provided, Mr. Gaskey has supplied incomplete tax returns inasmuch as he has provided only the first page of his tax returns for 1995, 1996 and 1997. Without the entire tax returns, we are unable to assess the amount of income earned during the relevant years. The NAL clearly states, at footnote two, that a claim of inability to pay should be supported by tax returns or other financial statements prepared under generally acceptable accounting procedures for the most recent three-year period. Undocumented statements of an individual's size and financial condition do not meet the requirement of a particularized showing of financial hardship or inability to pay. See, e.g., Barry A. Stevenson, 12 FCC Rcd 1976, 1977 (1997) (three years of financial statements or other reliable and objective documentation accurately reflecting petitioner's current financial status required to demonstrate inability to pay); Timothy Harold Hoffman, 11 FCC Rcd 17463, 17464 (1996) (individuals have submitted information such as child support payments, tax liens, and garnishments to corroborate debts or liabilities); Macau Traders, Inc., 13 FCC Rcd 228, 233 (1998) (no reduction of forfeiture warranted due to undue financial hardship where violator provided no documentary evidence upon which to evaluate its financial condition or ability to pay). See also 47 C.F.R. § 1.80(f)(3) (``Any showing as to why the forfeiture should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent.''). 13. We have examined Mr. Gaskey's response to the NAL pursuant to the statutory factors above, and in conjunction with the Policy Statement as well. As a result of our review, we conclude that Mr. Gaskey has failed to provide a sufficient justification for reducing the forfeiture amount. Therefore, we affirm the forfeiture amount of $11,000. 14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and Section 1.80 of the Rules, and the Commission's Policy Statement, James Lee Gaskey IS LIABLE FOR A MONETARY FORFEITURE in the amount of $11,000 for the willful violation of Section 301 of the Act. 15. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R. § 1.80(f), James Lee Gaskey shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $11,000 for violation of Section 301 of the Act.3 Payment of the forfeiture shall be made by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation.4 The remittance should be marked ``NAL/Acct. No. 915KC0002'' and mailed to the following address: Federal Communications Commission P.O. Box 73482 Chicago, Illinois 60673-7482 Petitions for reconsideration filed pursuant to Section 1.106 of the Rules, 47 C.F.R. § 1.106, or applications for review filed pursuant to Section 1.115 of the Rules, 47 C.F.R. § 1.115, must be received by the Commission within thirty (30) days of the release of this order at the following address: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Technical & Public Safety Division Enforcement Bureau Forfeiture penalties not paid within thirty (30) days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C. § 504(a). 16. IT IS FURTHER ORDERED that a copy of this order shall be sent by certified mail, return receipt requested, to James Lee Gaskey, 5215 N. Pine Street, Davenport, Iowa 52806. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 This frequency is not available for use by CB stations and is not authorized for private use. See Sections 95.407 and 2.106 of the Rules, 47 C.F.R. §§ 95.407 and 2.106. 22 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f), which also applies to Section 503(b) of the Act, provides: ``[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 or by treaty ratified by the United States.'' See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 33 Claims of inability to pay should be supported by tax returns or other financial statements prepared under generally accepted accounting principles for the most recent three year period. 44 Requests for installment plans should be mailed: Chief, Credit & Debt Management Center, Mail Stop 1110A2, 445 Twelfth Street, S.W., Washington, D.C. 20554. Payment for the forfeiture in installments may be considered as a separate matter in accordance with Section 1.1914 of the Rules, 47 C.F.R. § 1.1914. Please contact Chief, Credit & Debt Management Center for information regarding credit card payments.