**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Frank Kluz ) File No. EB-02-DT-610

Lancaster, Ohio ) NAL/Acct. No. 200232360008

) FRN 0007-4207-22

)

## FORFEITURE ORDER 

**Adopted: August 12, 2003 Released: August 14, 2003**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of five hundred dollars (\$500) to Frank
    Kluz, Lancaster, Ohio, for willful violation of Section 95.411 of
    the Commission's Rules ("Rules").[^1] The noted violation involves
    Mr. Kluz's use of an external radio frequency power amplifier
    ("linear amplifier") as part of his Citizens Band ("CB") radio
    station.

2.  On July 23, 2002, the Commission's Detroit, Michigan Field Office
    ("Detroit Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Mr. Kluz in the amount of five thousand
    dollars (\$5,000).[^2] A letter responding to the *NAL* was filed on
    Mr. Kluz's behalf on October 3, 2002.

#### II. BACKGROUND

3.  On June 22, 2001, the City of Lancaster, Ohio, Office of the Law
    Director and City Prosecutor Office, sent a complaint letter to the
    Detroit Office. The complaint alleged that a CB radio station
    operated by Mr. Kluz was causing interference to home electronics
    equipment, such as televisions, radios and telephones, in his
    neighborhood.

4.  On July 19, 2001, the Detroit Office sent a Quiet Hours letter to
    Mr. Kluz directing him, his family, and any guests visiting him, not
    to operate any base or mobile radio transmitter from his property or
    adjacent roadways from the time the letter was received until he
    contacted the Detroit Office to make arrangements for an inspection
    of his CB radio facility. [^3]

5.  On August 1, 2001, Mr. Kluz sent a response to the Detroit Office.
    In this response, Mr. Kluz indicated that he would comply with the
    order not to operate his CB radio station, but did not make
    arrangements for an inspection of his CB station.

6.  On October 16, 2001, the City of Lancaster, Ohio, Office of the Law
    Director and City Prosecutor Office, sent a second complaint letter
    to the Detroit Office. The complaint alleged that Mr. Kluz's CB
    radio transmissions continued to cause interference to neighborhood
    televisions, radios and telephones, thereby violating the Quiet
    Hours letter.

7.  On October 31, 2001, an agent from the Detroit Office traveled to
    Lancaster, Ohio and monitored for transmissions from Mr. Kluz's CB
    station, but did not observe any transmissions from his station at
    that time. The agent went to 245 Talmadge Avenue, Lancaster, Ohio,
    the address stated in the complaints as Mr. Kluz's residence. The
    agent inspected Mr. Kluz's CB station and found it to be in
    compliance with applicable FCC rules and regulations. Accordingly,
    on November 14, 2001, the Detroit Office sent a letter to Mr. Kluz
    releasing him from the conditions that had been imposed on his
    operation of the CB station by the Quiet Hours letter.

8.  On January 21, 2002, the Office of Congressman David L. Hobson
    referred a complaint to the Detroit Office from his constituents
    regarding interference to telephones and home electronic equipment
    allegedly caused by Mr. Kluz's CB radio station.

9.  On June 10, 2002, the Detroit Office received a complaint from a
    resident in Lancaster, Ohio. The complaint alleged that Mr. Kluz's
    CB radio station was causing interference to neighborhood home
    electronics equipment.

10. On June 25, 2002, agents from the Detroit Office traveled to
    Lancaster, Ohio and monitored CB transmissions using a mobile
    direction finding vehicle. The agents detected CB transmissions on
    27.185 MHz (CB Channel 19) and, at approximately 8:26 p.m.,
    positively identified the source of the transmissions to be a
    residence at 245 Talmadge Avenue. The agents then proceeded to the
    residence at 245 Talmadge Avenue, interviewed Mr. Kluz, and
    inspected his CB radio station. The agents observed a Palomar
    TX-200B linear amplifier attached to Mr. Kluz's CB transceiver. Mr.
    Kluz told the agents that he had obtained the linear amplifier from
    a friend two days earlier and was checking it out for his friend.
    Measurements taken by the agents indicated that the linear amplifier
    had an output power that ranged from 12.5 watts to 75 watts, which
    exceeds the permissible power limits specified in Section 95.410 of
    the Rules.[^4]

11. On July 23, 2002, the Detroit Office issued a *NAL* for a \$5,000
    forfeiture to Mr. Kluz for using a linear amplifier as part of his
    CB radio station in willful violation of Section 95.411 of the
    Rules.[^5] Mr. Kluz did not respond to the *NAL*. However, on
    October 3, 2002, the Commission received a letter from Dr. James
    LeSar, M.D., responding to the *NAL* on behalf of Mr. Kluz. In this
    letter, Dr. LeSar asserts that due to the nature of his medical
    problems, Mr. Kluz is unable to understand and unable to willfully
    violate Section 95.411 by having a linear amplifier attached to his
    CB station. According to Dr. LeSar, Mr. Kluz suffers from several
    medical conditions, including dementia and a possible brain tumor,
    and has poor reading comprehension. Dr. LeSar's letter indicates
    that he did not personally examine Mr. Kluz. Dr. LeSar wrote that he
    was including documentation to demonstrate to the Enforcement Bureau
    that Mr. Kluz was unable to willfully violate Section 95.411;
    however, no documentation was included.

12. On June 17, 2003, the Enforcement Bureau sent a letter to Dr. LeSar
    requesting the referenced documentation. We received Dr. LeSar's
    response to our letter on June 30, 2003.

13. Accompanying Dr. LeSar's response was an evaluation of Mr. Kluz
    taken by Dr. Marc Miller for the Bureau of Disability Determination,
    on February 6, 2002. In the evaluation, Dr. Miller concluded that
    Mr. Kluz suffers from depression, cognitive difficulties, dementia,
    and memory problems. The evaluation further indicated that Mr. Kluz
    had a driver's license, drove to the evaluation appointment, and is
    able to manage his own funds. The evaluation did not state that Mr.
    Kluz was unable to willfully violate Section 95.411, or that Mr.
    Kluz was unable to know the actions he takes.

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III. **DISCUSSION**

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14. The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended, ("Act"),[^6] Section 1.80 of the Rules,[^7] 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*"). In examining Mr. Kluz'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.[^8]

15. Section 95.411 of the Rules prohibits attaching a power amplifier to
    a CB transmitter in any way. Furthermore, under 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 operator and there is
    other evidence that the CB station was operated with more power than
    allowed by the rules. On June 25, 2002, FCC agents positively
    identified Mr. Kluz's CB station as the source of CB transmissions
    on 27.185 MHz (CB Channel 19) and immediately thereafter inspected
    his CB station. This inspection revealed that the station consisted
    of a CB transceiver with an attached linear amplifier and power
    indicator meter. Mr. Kluz acknowledged at the time of the inspection
    that he had been operating the CB station with the attached linear
    amplifier. Accordingly, we conclude that Mr. Kluz violated Section
    95.411 of the Rules by operating a CB radio station with a linear
    amplifier.

16. We also conclude that this violation was willful within the meaning
    of Section 503(b) of the Act. The term "willful," as used in Section
    503(b) of the Act, does not require a finding that the rule
    violation was intentional or that the violator was aware that it was
    committing a rule violation.[^9] Rather, the term "willful" simply
    requires that the violator knew it was taking the action in
    question, irrespective of any intent to violate the Commission's
    rules.[^10] Dr. LeSar asserts in his letter that Mr. Kluz is unable
    to understand and unable to willfully violate Section 95.411 because
    he suffers from several medical conditions, including dementia and a
    possible brain tumor, and has poor reading comprehension. Dr. LeSar
    does not indicate, however, that Mr. Kluz was ever examined or
    questioned specifically to determine whether he understands what a
    linear amplifier is or how to turn it on. Moreover, based on
    correspondence from Mr. Kluz to the Detroit Office and the agents'
    interview of Mr. Kluz, at the time of the inspection, Mr. Kluz
    clearly knew that he had hooked up a linear amplifier to his CB
    radio station because he admitted to the agents that he was checking
    it out for a friend. Finally, we determine that the information
    provided by Dr. LeSar and Dr. Miller concerning Mr. Kluz's inability
    to act willfully is not sufficient to overcome our conclusion that
    Mr. Kluz knew he was using a linear amplifier. Specifically the
    psychological evaluation does not state that Mr. Kluz is unable to
    know the actions he takes, and therefore the evaluation does not
    refute Mr. Kluz's own statement that he was operating a linear
    amplifier. Accordingly, based on the evidence in the record, we find
    that Mr. Kluz willfully violated Section 95.411 of the Rules.

17. We have examined Mr. Kluz's information, relating to his ability to
    pay, and determined that the proposed \$5,000 forfeiture would
    impose a financial hardship on Mr. Kluz. Therefore, we will reduce
    the forfeiture amount from \$5,000 to \$500.

18. Finally, we note that we have not received any recent complaints
    concerning Mr. Kluz's use of a linear amplifier. However, if we
    receive further complaints stemming from Mr. Kluz's improper use of
    a linear amplifier, we will take appropriate additional enforcement
    action.

#### IV. ORDERING CLAUSES

19. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^11]
    Frank Kluz **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    five hundred dollars (\$500) for willful violation of Section 95.411
    of the Rules.

20. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules 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.[^12] Payment may 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 reference NAL/Acct. No. 200232360008 and FRN
    0007-4207-22. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12th Street, S.W., Washington, D.C. 20554.[^13]

21. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by first class mail and certified mail, return receipt requested, to
    Frank Kluz, 245 Talmadge Avenue, Lancaster, Ohio 43130.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 95.411.

[^2]:
    > *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    > 200232360008 (Enf. Bur., Detroit Office, rel. July 23, 2002).

[^3]:
    > Pursuant to Section 95.423 of the Rules, 47 C.F.R. § 95.423, a CB
    > operator must comply with any restricted hours of CB station
    > operation set forth in an official notice from the FCC that the
    > station is causing interference.

[^4]:
    > Section 95.410 of the Rules provides that a CB station transmitter
    > power output must not exceed 4 watts carrier power (AM) and 12
    > watts peak envelope power (SSB) under any conditions. 47 C.F.R. §
    > 95.410.

[^5]:
    > Under Section 1.80(b)(4) of the Rules, \$5,000 is the base
    > forfeiture amount for use of unauthorized equipment. 47 C.F.R. §
    > 1.80(b)(4), Note to Paragraph (b)(4): *Section I.---Base Amounts
    > for Section 503 Forfeitures*.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]:
    > 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,' ...
    > 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 ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    > 4387 (1991).

[^10]: *Id*.

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.