Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

Mike Morrison ) **File No. EB-00-AT-1083**

3880 Nowlin Road )

Kennesaw, GA 30144 ) **NAL/Acct. No. X3248005**

**FORFEITURE ORDER**

**Adopted**: **January 25, 2001** **Released: January 29, 2001**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Forfeiture Order ("Order"), we issue a monetary forfeiture
    in the amount of two thousand dollars (\$2,000) against Mike
    Morrison, d/b/a Morrison Sales Company ("Morrison") for violating
    Section 302 of the Communications Act of 1934, as amended
    ("Act")[^1] by marketing non-compliant devices for use in the FM
    broadcast band. The noted violations involve the sale of at least 12
    FM transmitters that exceeded the field strength limitations
    prescribed by Section 15.239 of the Commission's Rules ("the Rules")
    [^2] for non-licensed, low-powered transmitters.

2.  On October 11, 2000, the District Director of the Atlanta, Georgia,
    Field Office ("Atlanta Office") issued *a Notice of Apparent
    Liability for Forfeiture* ("*NAL*") in the amount of two thousand
    dollars (\$2,000).[^3] Morrison filed his response on November 1,
    2000.

**II. BACKGROUND**

3.  On September 28, 1999, agents from the Atlanta Office began an
    investigation into the marketing of low power FM transmitters
    following news reports about such transmitters. The agents found
    eleven SKY-2000 FM transmitters that had been distributed by Skywave
    Electronics ("Skywave"), Rockford, Illinois, and sold by Morrison.
    Field strength measurements taken during the investigation showed
    that the eleven transmitters exceeded the level authorized by
    Section 15.239 of the Rules.

4.  On September 28, 1999, during an inspection of a SKY-2000 FM
    transmitter and on October 15, 1999, during an office interview, the
    agents verbally warned Morrison against the marketing of
    noncompliant low power devices. On November 25, 1999, the Atlanta
    Office issued Morrison an Official Notice of Violation for violation
    of Section 302 of the Act (marketing noncompliant devices). In his
    response to the NOV, Morrison asserted his intention to comply with
    Section 302.

5.  On August 16, 2000, an agent from the Atlanta Office inspected a
    SKY-2000 FM transmitter operating at the Chick-fil-A restaurant in
    Marietta, Georgia ("Chick-fil-A"), and found that the transmitter's
    field strength exceeded the level authorized by Section 15.239 of
    the Rules for non-licensed low-powered transmitters. The owner of
    Chick-fil-A stated that he acquired the SKY-2000 FM transmitter from
    Morrison in May 2000.

6.  In his response to the NAL, Morrison asserts that he "gave" the
    restaurant an "older" SKY-2000 FM transmitter and charged "only for
    production work . . . on a monthly basis." Morrison also asserts
    that does not have the apparatus or the technical ability to
    determine whether the devices he markets are compliant and contends
    that he should be able to rely on Skywave's representation that its
    devices are compliant.

# III. DISCUSSION

7.  As the NAL explicitly states, the Atlanta Office assessed the
    proposed forfeiture amount in this case in accordance with Section
    503 of the Act,[^4] Section 1.80 of the Rules,[^5] 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
    Morrison's response, 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.[^6]

8.  Section 302 of the Act provides, in pertinent part, that: "No person
    shall . . . sell . . . devices . . . which fail to comply with the
    regulations promulgated pursuant to this section." Section 15.239 of
    the Rules[^7] specifies the permissible field strength level for
    non-licensed low-powered transmitters which operate in the 88-108
    MHz FM broadcast band.

9.  It is undisputed that Morrison transferred a SKY-2000 FM transmitter
    which did not comply with the field strength level specified by
    Section 15.329 of the Rules to Chick-fil-A. We reject Morrison's
    claim that he "gave" rather than sold that transmitter to
    Chick-fil-A. First, Morrison is engaged in a for-profit business and
    clearly received a pecuniary benefit from transferring the SKY-2000
    FM transmitter to Chick-fil-A. Furthermore, the owner of Chick-fil-A
    stated to a Commission agent that he acquired the SKY-2000 FM
    transmitter as part of a package arrangement for which he paid
    approximately \$900 and which also included monthly programming
    "updates" for one year at no additional cost (\$25 per month after
    one year). The transaction between Morrison and Chick-fil-A clearly
    constituted a sale.

10. It is Morrison's responsibility to ensure that the radio frequency
    devices he sells are compliant with the field strength level
    specified by the Rules. At the time Morrison sold the SKY-2000 FM
    transmitter to Chick-fil-A, he knew that Skywave had distributed
    eleven noncompliant SKY-2000 FM transmitters which Skywave claimed
    were compliant. Morrison, therefore, should have known that he could
    not rely on Skywave's representations of compliance. It was
    essential for Morrison to independently determine whether the
    SKY-2000 FM transmitter was compliant before selling it to
    Chick-fil-A but he did not do so. Since Morrison could have engaged
    a contractor to make an independent determination, his assertion
    that he lacked the necessary apparatus and the technical ability
    cannot excuse his failure to make an independent determination.

11. We conclude that there is no basis for rescission or mitigation of
    the proposed monetary forfeiture and that \$2,000 is the proper
    amount.

**IV. ORDERING CLAUSES**

12. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act,[^8] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Rules,[^9] Mike Morrison **IS LIABLE FOR A** **MONETARY FORFEITURE**
    in the amount \$2,000 for willfully and repeatedly violating the
    provisions of Section 302 of the Act, which prohibits the sale of
    noncompliant radio frequency devices.

13. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's Rules[^10] 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.[^11]
    Payment shall be made by mailing a check or similar instrument,
    payable to the order of the Federal Communications Commission, to
    the Federal Communications Commission, P.O. Box 73482, Chicago,
    Illinois 60673-7482. The payment should note the NAL/Acct. No.
    referenced above. Requests for full payment under an installment
    plan should be sent to: Chief, Credit and Debt Management Center,
    445 12th Street, S.W., Washington, D.C. 20554.[^12]

14. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent by
    Certified Mail Return Receipt Requested to Mike Morrison at 3880
    Nowlin Road, Kennesaw, GA 30144.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 302a.

[^2]: 47 C.F.R. § 15.239.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/No. X3248003
    (Enf. Bur., Atlanta Office, released May 9, 2000).

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: ^6^ 47 U.S.C. § 503(b)(2)(D).

[^7]: 47 C.F.R. § 15.239.

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^10]: 47 C.F.R. § 1.80.

[^11]: 47 U.S.C. § 504(a).

[^12]: *See* 47 C.F.R. § 1.1914.