Subject: [NEXTEL-1] FCC Hits CB'er With $5000 NAL For Illegal Operation

From: Marcel <[email-masked]>
Date: Thu, 05 Dec 2002 14:22:16 -0500

They still go after CB'ers ???  Must be real slow in the FCC Tampa office

     "McCreary has admitted that he operated his CB station with a linear amplifier
     attached" -
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                       FCC Fines CB'er $5000 For Illegal Operation

                                        Before the
                            Federal Communications Commission
                                  Washington, D.C. 20554

In the Matter of      File No.: EB-01-TP-399

Joseph S. McCreary    NAL/Acct. No. 200232700006

Pensacola, Florida    FRN 0006-9319-84

                               MEMORANDUM OPINION AND ORDER

 Adopted:  December 3, 2002    Released:  December 5, 2002

By the Chief, Enforcement Bureau:

I.  INTRODUCTION

 1.  In this Memorandum Opinion and Order (“Order”), we deny the petition for
reconsideration filed on August 21, 2002, by Joseph S. McCreary  (“McCreary”).  McCreary
seeks reconsideration of the Forfeiture Order,  in which the Chief, Enforcement Bureau
(“Bureau”), found him liable for a monetary forfeiture in the amount of $5,000 for willful
violation of Section 95.411 of the Commission’s Rules (“Rules”).    The noted violation
involves McCreary’s attachment and use of an external radio frequency power amplifier as
part of his Citizens Band (“CB”) radio station.  For the reasons discussed below, we
affirm the monetary forfeiture in the amount of $5,000.

II.  BACKGROUND

 2.  On March 11, 2002, agents from the Commission’s Tampa, Florida, Office (“Tampa
Office”) traveled to Pensacola, Florida, to investigate complaints indicating that
McCreary was operating a CB radio station with a 1,000 watt linear amplifier and was
causing interference to home electronic entertainment devices.  On the same date, the
agents inspected McCreary’s CB station and observed that a linear amplifier was connected
to the station’s CB transceiver.  McCreary admitted to the agents that he had been
operating his CB station with a linear amplifier attached and with a power of at least 20
watts.
 3.  On the basis of the foregoing observations, the District Director of the Tampa Office
issued a Notice of Apparent Liability for Forfeiture (“NAL”)  on May 7, 2002, in the
amount of $5,000 to McCreary.  McCreary did not respond to the NAL.  On August 1, 2002,
the Enforcement Bureau issued a Forfeiture Order to McCreary, affirming the forfeiture
proposed by the NAL.   In his request for reconsideration of the Forfeiture Order,
McCreary asserted that: his linear amplifier had been disabled, he could receive but not
make radio transmissions, and his station’s power was four watts.  Additionally, McCreary
stated that he would like to resolve the monetary forfeiture and offered to let the
Commission take possession of his radio apparatus in lieu of payment of the forfeiture.

III.  DISCUSSION

 4.  The Enforcement Bureau assessed the forfeiture amount in this case in accordance with
Section 503 of the Communications Act of 1934, as amended (“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, 15 FCC Rcd 303 (1999) (“Policy Statement”).  Section 503(b) of the Act  requires
that, in examining McCreary’s petition, 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.  Section 95.411 of the Rules prohibits the attachment of radio frequency power
amplifiers, including linear amplifiers, to CB transmitters.  FCC agents observed that a
linear amplifier was attached to McCreary’s CB transceiver.  Furthermore, McCreary has
admitted that he operated his CB station with a linear amplifier attached.  We conclude
that McCreary willfully violated Section 95.411 of the Rules.

 6.  McCreary claims he has taken steps to correct his violation of Section 95.411.
However, complaints received during October 2002 indicate that McCreary may still be
causing interference to home electronic entertainment devices.  In any event, even if
McCreary has corrected the violations, no mitigation is warranted.  As the Commission
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), “corrective action taken to
come into compliance with Commission rules or policy is expected, and does not nullify or
mitigate any prior forfeitures or violations.”

 7.  McCreary suggests the forfeiture could be resolved by the surrender of his radio
apparatus.  We disagree.   McCreary’s surrender of his radio apparatus after being cited
for the violation would simply be an additional corrective measure, which cannot be used
to mitigate the forfeiture.

 8.  We have examined McCreary’s petition for reconsideration pursuant to the statutory
factors set forth above, and in conjunction with the Policy Statement as well.  As a
result of our reconsideration, we conclude that McCreary has failed to provide sufficient
justification for any change in the Forfeiture Order.

IV.  ORDERING CLAUSES

 9.  Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act,  and Section
1.106 of the Rules,  McCreary’s petition for reconsideration of the August 1, 2002,
Forfeiture Order IS DENIED and the issuance of the $5,000 forfeiture IS AFFIRMED.

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