**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-08-PO-037       |
|                                  |   |                                 |
| Jeremy William Barber            | ) | NAL/Acct. No.: 200832920001     |
|                                  |   |                                 |
| Aloha, Oregon                    | ) | FRN: 0017513151                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: March 28, 2008

By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Jeremy William Barber ("Barber"), owner and operator of a
    Citizens Band ("CB") radio station in Aloha, Oregon, apparently
    willfully violated Section 303(n) of the Communications Act of 1934,
    as amended,[^1] (the Act) and Section 95.426(a) of the Commission\'s
    Rules (CB Rule 26)[^2] by failing to permit inspection of the CB
    radio station. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (\"Act\"),[^3] that Jeremy
    William Barber is apparently liable for a forfeiture in the amount
    of seven thousand dollars (\$7,000).

# BACKGROUND

2.  On Saturday, February 16, 2008, in response to complaints regarding
    recurring radio frequency interference on Saturday evenings from the
    Washington County Sheriff's Office and various residents, an agent
    from the Enforcement Bureau's Portland Resident Agent Office
    monitored radio transmissions on frequency 27.205 MHz in Aloha,
    Oregon. At approximately 8:00 p.m., using radio direction finding
    techniques, the agent located the source of the signal to a CB radio
    station located at Barber's residence in Aloha, Oregon.

3.  On Saturday, February 23, 2008, at approximately 8:00 p.m., the
    Portland agent again monitored frequency 27.205 MHz. Using radio
    direction finding techniques, the agent located the source of the
    signal to a CB radio station operating from Barber's residence in
    Aloha, Oregon. At approximately 8:45 p.m., the agent, along with
    deputies of the Washington County Sherriff's Office, approached
    Barber's residence, identified himself as an agent of the FCC and
    presented his official badge and credentials. In response to a
    request by the Portland agent, the individual identified himself as
    Jeremy Barber. The Portland agent then asked Barber if he was
    operating the CB station. Barber stated that he was the owner and
    operator of the CB station. The agent advised Barber about the radio
    frequency interference complaints and requested to inspect his CB
    station to determine the cause of the interference. Barber denied
    the request from the Portland agent. The Portland agent then read
    Section 95.426(a) (CB Rule 26), which requires CB operators to make
    their stations available to authorized FCC representatives for
    inspection, to Barber and made a second request to inspect the CB
    station to resolve the interference. Barber denied the second
    request and stated that the FCC must get a search warrant to inspect
    his CB station. The agent advised Barber to take extra precautions
    to avoid the radio interference and issued an oral warning to
    Barber. The Portland agent also offered to provide a copy of CB Rule
    26 to Barber but Barber refused to accept a copy of the rule. The
    Portland agent then left the premises, along with the Washington
    County deputies. At approximately 9:30 p.m., the agent monitored
    frequency 27. 205 MHz and noted that the signal went off the air.

4.  On February 25, 2008, the Portland agent received another complaint
    stating that Barber had resumed operation at approximately 11:00
    p.m., on February 23, 2008, after the Portland agent had left the
    area.

# DISCUSSION

5.  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 willfully or repeatedly 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.[^4] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^5]

6.  Section 303(n) of the Act states that the Commission has the
    "authority to inspect all radio stations associated with stations
    required to be licensed by ant Act, or which the Commission by rule
    has authorized to operate without a license under Section
    307(e)(1)." Section 307(e)(1) expressly includes "the citizen band
    radio service." [^6] Additionally, Section 95.426(a) of the Rules
    (CB Rule 26) states "\[i\]f an authorized FCC representative
    requests to inspect your CB station, you must make your CB station
    and records available for inspection."[^7] The Commission has no
    requirement that an agent obtain a warrant prior to conducting such
    an inspection.[^8]

7.  On February 16, 2008, and February 23, 2008, a Portland agent
    located the source of signals on 27.205 MHz to Barber's residence in
    Aloha, Oregon. On February 23, 2008, in an effort to determine the
    cause of the alleged interference, and to resolve it, the Portland
    agent twice requested to inspect Barber's CB radio station. Barber
    denied both requests, despite the fact that prior to the second
    request, the Portland Agent read and explained Section 95.426(a) of
    the Rules (CB Rule 26) to Barber. Based on the evidence before us,
    we find that Jeremy William Barber apparently willfully violated
    Section 303(n) of the Act and Section 95.426(a) of the Rules by
    failing to permit inspection.

8.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for failing to permit
    inspection is \$7,000.[^9] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(E) of the Act, which include the nature,
    circumstances, extent, and gravity of the violations, 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.[^10] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors to the instant case, we
    conclude that Jeremy William Barber is apparently liable for a
    \$7,000 forfeiture.

9.  We warn Barber that operation of his CB station with more power than
    authorized (AM (A3) -- 4 watts (carrier power) SSB -- 12 watts (peak
    envelope power)) is a violation of Section 95.410 of the Rules (CB
    Rule 10).[^11] Use of a transmitter which has carrier or peak
    envelope power in excess of that authorized will void Barber's
    authority to operate the station.[^12] It can also result in
    additional sanctions and forfeitures.

# ORDERING CLAUSES

10. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Jeremy William
    Barber is hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A
    FORFEITURE** in the amount of seven thousand dollars (\$7,000) for
    violations of Section 303(n) of the Act and Section 95.426(a) of the
    Rules.[^13]

11. **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 for Forfeiture, Jeremy William Barber
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

12. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Account Number and FRN
    Number referenced above. Payment by check or money order may be
    mailed to Federal Communications Commission, P.O. Box 979088, St.
    Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
    Bank -- Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention
    Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to
    ABA Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to:  Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington,
    D.C.  20554. [^14]  Please contact the Financial Operations Group
    Help Desk at 1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any
    questions regarding payment procedures.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Portland Resident
    Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469 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. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Jeremy William Barber.

FEDERAL COMMUNICATIONS COMMISSION

Binh Nguyen

Resident Agent,

Portland Resident Agent Office

Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 303(n).

[^2]: 47 C.F.R. § 95.426(a).

[^3]: 47 U.S.C. § 503(b).

[^4]: 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 or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]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."

[^6]: 47 U.S.C. § 307(e)(1).

[^7]: 47 C.F.R. § 95.426(a).

[^8]: *See Norfolk Southern Railway Company*, 11 FCC Rcd 519 (CIB 1996)
    (The right to inspect a station is one of the cornerstones of the
    FCC's ability to ensure compliance with the Communications Act and
    the FCC regulations). *See also, Randall R. Gaines*, 72 FCC 2d 871,
    ¶13 (Rev. Board 1979).

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^10]: 47 U.S.C. § 503(b)(2)(E).

[^11]: 47 C.F.R. § 95.410(a).

[^12]: 47 C.F.R. § 95.410(c).

[^13]: 47 U.S.C. §§ 503(b), 303(n) , 47 C.F.R. §§ 0.111, 0.311, 0.314,
    1.80, 95.426(a).

[^14]: *See* 47 C.F.R. § 1.1914.