**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

#### CERTIFIED MAIL \# 7001 2510 0007 6500 1018

RETURN RECEIPT REQUESTED

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| Robert A. Spiry                   | )                                 |
|                                   |                                   |
| 1516 S. 52nd Street               | ) File Number: EB-02-ST-045       |
|                                   |                                   |
| Tacoma, WA 98408                  | ) NAL/Acct. No. 200332980002      |
|                                   |                                   |
|                                   | ) FRN 0007-9392-18                |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+

## 

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: December 30, 2002

By the Enforcement Bureau, Seattle Field Office:

##### I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Robert A. Spiry apparently willfully and repeatedly
    violated Section 301 of the Communications Act of 1934, as amended
    ("Act")[^1] by operating a radio station without Commission
    authorization. We conclude, pursuant to Section 503(b) of the
    Act,[^2] that Mr. Spiry is apparently liable for forfeiture in the
    amount of ten thousand dollars (\$10,000).

**II.** **BACKGROUND**

2.  On February 27, 2002, the FCC Seattle Office received a letter of
    complaint of neighborhood wide interference to home entertainment
    equipment around the 1500 block of S. 52^nd^ Street, Tacoma,
    Washington. On March 13, 2002, at approximately 6:35 p.m. local
    time, a Seattle Office agent, using mobile direction finding ("DF")
    equipment, determined that the interference signal was a transmitter
    station operating on the Citizen Band ("CB") frequency 27.025 MHz at
    the residence of Mr. Robert Spiry at 1516 S. 52^nd^ Street, Tacoma,
    Washington. The Agent observed signal levels that appeared to be
    significantly higher than those expected from a legal CB
    transmitter.

3.  Between March 4, 2002 and March 25, 2002, the Seattle Field Office
    received 10 faxed complaints of interference to home electronic
    equipment from Mr. Spiry's CB radio station. On April 2, 2002, at
    approximately 5:30 p.m. local time, agents from the Seattle Office
    observed radio transmissions on 27.025 MHz in the CB band with
    signal levels that appeared to be significantly higher than those
    expected from a legal CB transmitter. Using mobile DF equipment, the
    Seattle Office agents positively located the signals emanating from
    Mr. Spiry's residence. After locating the signal source, on April 2,
    2002 at approximately 7:11 p.m. local time, assisted by two Tacoma
    Police Officers, the Seattle Office agents requested an inspection
    of Mr. Spiry's CB station. After a significant delay at the door and
    then more delay once inside, the inspection was allowed. The agents
    determined that Mr. Spiry had been operating an unauthorized CB type
    radio power amplifier (linear), a Dutchman Special, model 4-400 and
    a non-FCC certified Malaysian manufactured RCI model 2980
    transmitter. The agents informed Mr. Spiry that he was operating an
    illegal unlicensed station and that his use of unauthorized
    equipment voided his authority to operate the CB station. A Notice
    of Unlicensed Operation was issued to, and signed for by, Mr. Spiry.

4.  On April 25, 2002, after receiving several more complaints of
    interference from the neighbors, the Seattle Office imposed
    restricted hours on Mr. Spiry's CB operations.

5.  On June 6, 2002, at approximately 6:00 p.m., Seattle agents
    conducted a scheduled inspection of Mr. Spiry's radio station while
    monitoring the neighbor's home electronics. The CB radio equipment
    provided by Mr. Spiry for the inspection was determined to operate
    within the CB Rules and caused no interference to the neighbor's
    electronics. Mr. Spiry was informed that his CB station was legal
    and not causing any interference to the neighbors. He was further
    advised that if interference recurred, the agents would assume he
    was operating non-FCC type accepted radio equipment.

6.  During the period from June 17, 2002 to October 12, 2002, the FCC
    Seattle Office received 15 more complaints about periodic
    interference from Mr. Spiry's CB station. On October 29, 2002 at
    approximately 7:00 p.m. local time, agents from the Seattle Office
    positively located and monitored Mr. Spiry transmitting on 27.165
    MHz in the CB band, from his mobile station, a 1983 Chevy Van -WA
    license 903 KTZ, as he was leaving his home and driving east on
    52^nd^ Street in Tacoma. The signal levels were significantly higher
    than those expected from a legal CB radio transmission.

7.  On November 5, 2002 at approximately 6:45 p.m. local time, Seattle
    Office agents positively located and monitored Mr. Spiry operating
    on the CB frequency 27.165 MHz from his mobile station, a 1983 Chevy
    Van -WA license 903 KTZ, as he was leaving the Park and Ride lot
    near Alaska and S. 56^th^ Street and followed him to his home at
    1516 S. 52^nd^ Street in Tacoma. The signal levels were
    significantly higher than those expected from a legal CB
    transmitter. Shortly after the monitoring and assisted by two Tacoma
    Police officers, the Seattle agents visited Mr. Spiry's residence
    and requested an inspection of Mr. Spiry's 1983 Chevy van (WA
    license -903 KTZ). Mr. Spiry opened the van side door and admitted
    that he had been operating an external radio frequency power
    amplifier, a Big Dawg 1000 watt model-600, with a Galaxy DX99
    transceiver. Neither units have any FCC certification, and thus are
    unauthorized for use the CB radio Service. Mr. Spiry was advised
    that operating with unauthorized equipment voids the blanket CB
    license and he was issued a second Notice of Unlicensed Operation.

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III. **DISCUSSION**

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8.  Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license or fails to comply with any of the
    provisions of the Act or of any rule, regulation or order issued by
    the Commission thereunder, shall be liable for a forfeiture penalty.
    The term \"willful\" as used in Section 503(b) has been interpreted
    to mean simply that the acts or omissions are committed
    knowingly.[^3] The term \"repeated\" means the commission or
    omission of such act more than once or for more than one day.[^4]

9.  Section 301 of the Act sets forth generally 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 this Act and with a license granted
    under the provisions of this Act. The Rules governing the

licensing and operation of CB radio stations are set forth under Subpart
D of Part 95 of the Rules.[^5] Section 95.409 of the Rules states that a
CB operator must use an FCC certified CB transmitter and that use of a
non-certified transmitter voids authority to operate the CB station.
Section 95.410 of the Rules specifies that the CB station transmitter
power output must not exceed 4 watts. Section 95.411 of the Rules
prohibits attaching a power amplifier to a CB transmitter in any way.
Furthermore, pursuant to Section 95.411(c) of the Rules, there is a
presumption that a linear or other external RF power amplifier has been
used if it is found in the possession of, or on the premises of, the CB
radio station and there is other evidence that the CB station was
operated with more power than allowed by the Rules. Section 95.411(b)
reiterates that there are no exceptions to the rule against using a
power amplifier and that use of a power amplifier voids authority to
operate the station.

10. Based on the evidence before us, we find that Mr. Spiry willfully
    and repeatedly violated Section 301 of the Act by operating a
    station without a proper license. The base forfeiture amount set by
    *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    (\"*Forfeiture Policy Statement*\"),[^6] and Section 1.80 of the
    Rules,[^7] for operating an unlicensed radio station is \$10,000. In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(D) of
    the Act,[^8] which include the nature, circumstances, extent, and
    gravity of the violation(s), and with respect to the violator, the
    degree of culpability, and history of prior offenses, ability to
    pay, and other such matters as justice may require. Applying the
    *Forfeiture Policy Statement* and the statutory factors to the
    instant case, a \$10,000 forfeiture is warranted.

## IV. ORDERING CLAUSES

11. 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 of the Commission\'s Rules, Mr. Robert A. Spiry, is hereby
    NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the amount of
    ten thousand dollars (\$10,000) for violation of Section 301 of the
    Communications Act of 1934, as amended.[^9]

12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty days of the release date of this
    NOTICE OF APPARENT LIABILITY, Mr. Spiry SHALL PAY the full amount of
    the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture. Payment of the
    forfeiture may be made by mailing a check or similar instrument,
    payable to the order of the Federal Communications Commission, to
    the Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment must include the FCC Registration Number
    ("FRN") and the NAL/Acct. Number referenced in the caption.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12^th^ Street, S.W., Washington, D.C. 20554, Ref:
    EB-02-ST-045; and must include the NAL/Acct. No. referenced in the
    caption.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices (\"GAAP\"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner\'s current financial status. Any claim of inability to
    pay must specifically identify the basis for the claim by reference
    to the financial documentation submitted.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^10]

16. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Federal
    Communications Commission, Enforcement Bureau, Technical & Public
    Safety Division. Your certification should indicate whether you,
    including your parent entity and its subsidiaries, meet one of the
    definitions set forth in the list provided by the FCC's Office of
    Communications Business Opportunities (OCBO) set forth in Attachment
    A of this Notice of Apparent Liability. This information will be
    used for tracking purposes only. Your response or failure to respond
    to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail \# 7001 2510 0007 6500
    1018, Return Receipt Requested to Mr. Robert A. Spiry, 1516 S. 52nd
    Street, Tacoma, WA 98408

FEDERAL COMMUNICATIONS COMMISSION

Dennis Anderson

District Director, Seattle Office

[^1]: 47 U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: Section 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\', 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
    ....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^4]: Section 312(f)(2), 47 U.S.C. § 312(f)(2), which also applies to
    Section 503(b), provides: \"\[t\]he term \"repeated\", when used
    with reference to the commission or omission of any act, means the
    commission or omission of such act more than once or, if such
    commission or omission is continuous, for more than one day.\"

[^5]: 47 C.F.R. § 95.401 *et seq.*

[^6]: 12 FCC Rcd 17087 (1997)*, recon. denied,* 15 FCC Rcd 303 (1999).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 U.S.C. §§ 301 and 503(b); 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^10]: *See* 47 C.F.R. § 1.1914.