**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

Mr. Mark H. Fulling ) NAL/Acct. No. 815KC0004

Garden City, Kansas )

)

**FORFEITURE ORDER**

**Adopted:** February 26, 1999 **Released:** March 1, 1999

By the Director, Legal Services Group,

Compliance and Information Bureau:

1\. Before the Compliance and Information Bureau ("the Bureau") is a
Notice of Apparent Liability (\"NAL\"), issued on September 2, 1998, to
Mark H. Fulling of Garden City, Kansas, and the September 29, 1998,
response thereto filed by his counsel. The NAL proposed imposition of a
forfeiture against Mr. Fulling in the amount of \$8,000 pursuant to
Section 503(b) of the Communications Act of 1934, as amended (\"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, for the willful violation of Section
301 of the Act, 47 U.S.C. § 301. For the reasons stated below, we affirm
the monetary forfeiture issued in the amount of \$8,000.

**BACKGROUND**

2\. On August 17, 1998, the Bureau's Kansas City, Missouri Office
received a complaint regarding an unlicensed radio station operating on
the frequency of 102.1 MHz in Garden City, Kansas. A review of the
Commission's records revealed that no authorization had been issued for
an FM station to operate on frequency 102.1 MHz in Garden City, Kansas.
On August 25, 1998, an agent from the Kansas City Office was dispatched
to investigate the complaint. Using close-in direction finding
techniques, the agent traced the signals to a residence at 503 Stoeckley
Place in Garden City, Kansas. The agent determined that the station
could be heard from up to seven miles from the source of the signal's
transmission.

3\. On August 26, 1998, the FCC agent, accompanied by a local law
enforcement officer, attempted to inspect the station. They were met at
the front door of the residence at 503 Stoeckley Place, Garden City,
Kansas by the owner of the station, Mark H. Fulling. Mr. Fulling refused
to allow the agent entry in order to inspect the station. Mr. Fulling
was unable to produce any type of FCC authorization and admitted that he
was operating the station without a license. Mr. Fulling informed the
agent that he was operating the station with a power of nine watts and
that he had been expecting a visit from the FCC as a result of the
unlicensed operation. The agent issued, and had Mr. Fulling sign for the
acceptance, of an FCC Form 835, which warns of the penalties for
operating a radio station without a license in violation of Section 301
of the Act. After concluding that the unlicensed station was operating
at a power level in excess of that which would be permitted for
non-licensed broadcasting,[^1] and in light of the intentional nature of
this offense, on September 2, 1998, the District Director of the Kansas
City Office issued the subject NAL to Mr. Fulling in the amount of
\$8,000 for the willful violation of Section 301 of the Act.

**DISCUSSION**

4\. A written response to the NAL, dated September 29, 1998, was
received by the Bureau on October 1, 1998. In the response, Mr.
Fulling's attorney states that his client denies that "he has committed
any willful or repeated violation of any federal telecommunications
statutes or of any FCC regulations." In support of this statement, Mr.
Fulling's attorney submits that the equipment used in the unlicensed
operation did not exceed FCC specifications, and that operation of the
station did not cause interference to the signal of any licensed radio
station. We believe that Mr. Fulling's reliance on these arguments are
misplaced and only serves as an admission to the violation of Section
301 of the Act. *See Stephen Paul Dunifer*, 11 FCC Rcd 718, 727 (1995)
(Section 301 of the Act specifically prohibits the transmission of radio
communications without a license and there is no support for the view
that this licensing requirement cannot be enforced unless there is a
specific showing that the unlicensed radio transmission caused or may
cause harmful interference). *See also*, *National Broadcasting Co. v.
United States*, 319 U.S. 190, 209-217 (1943). Furthermore, Mr. Fulling
admitted to the FCC agent that he was operating a nine watt FM radio
station without a license or other authorization from the FCC and was
anticipating a visit by the FCC because of this unlicensed operation.
Mr. Fulling's admission clearly demonstrates that he was intentionally
operating the unlicensed radio station. Thus, it is clear that these
violations were willful under the Act because they were not caused by
accident or mistake.[^2]

5\. Additionally, the response states that Mr. Fulling has no intention
of engaging in radio broadcasting without obtaining all required
licenses and permits. The response states further that Mr. Fulling is
now interested in applying for a license for a Class A commercial FM
station. The fact that Mr. Fulling has apparently ceased the unlicensed
operation and now wishes to operate a licensed station is commendable,
however, such remedial action correcting a violation within itself does
not nullify a forfeiture penalty. *See KGVL, Inc.*, 42 FCC 2d 258, 259
(1993).

6\. The Kansas City Office issued the forfeiture pursuant to Section 503
of the Act and Section 1.80 of the Rules. In assessing the forfeiture
amount, the Kansas City Office followed the forfeiture standards
established in Section 503 of the Act and *The Commission\'s Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate Guidelines*, 12 FCC Rcd 17087 (1997), *recon. pending*
(*\"Policy Statement\"*)*.* 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). Applying
the *Policy Statement* and statutory factors to the instant case, as
well as the factors examined above, we affirm the forfeiture amount of
\$8,000.

7\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, 47 U.S.C. § 503(b) and Section 1.80 of the Rules, 47 C.F.R. §
1.80, Mark H. Fulling **IS LIABLE FOR A MONETARY FORFEITURE** in the
amount of \$8,000 for willful violation of Section 301 of the Act, 47
U.S.C. § 301.

8\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80(f) of the
Rules, 47 C.F.R. §1.80(f), Mark H. Fulling shall, within thirty (30)
days of the release of this Forfeiture Order, pay the amount of \$8,000.
Forfeitures shall be paid by check, money order or credit card drawn on
a U.S. financial institution, with the appropriate documentation, made
payable to the Federal Communications Commission.[^3] The remittance
should be marked NAL/Acct. No. 815KC0004, and mailed to the following
address:

Federal Communications Commission

Post Office Box 73482

Chicago, Illinois 60673-7482

Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47
C.F.R. § 1.106, or applications for review pursuant to Section 1.115 of
the Rules, 47 C.F.R. § 1.115, should be sent to:

Office of the Secretary

Federal Communications Commission

445 12th Street, S.W.

Washington, D.C. 20554

ATTN: Mail Stop 1500E3-DLH

Compliance and Information Bureau

Forfeiture penalties not paid within 30 days will be referred to the
U.S. Attorney for recovery in a civil suit. 47 U.S.C. § 504(a).

9\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
certified mail, return receipt requested, to Mark H. Fulling at 503
Stoeckley Place, Garden City, Kansas 67846 and his counsel.

**FEDERAL COMMUNICATIONS COMMISSION**

Ricardo M. Durham

Director, Legal Services Group

Compliance Division

Compliance and Information Bureau

[^1]: ^?^*See* Section 15.209 of the Rules, 47 C.F.R. § 15.209.

[^2]: ^?^ Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), 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 a treaty ratified by the United
    States.\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^3]: ^?^ Requests for payment under installment plans should be mailed
    to: Chief, Billings and Collections, Mail Stop 1110A2, 445 12th
    Street, S.W., Washington, D.C. 20554. Payment of 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. Contact Chief,
    Billings and Collections at (202) 418-1995 for more information on
    payments by credit card.