**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

**In the Matter of** )

) **NAL/Acct. No. 815KC0004**

Mark H. Fulling )

Garden City, Kansas )

# MEMORANDUM OPINION AND ORDER

**Adopted: March 23, 2000 Released: March 29, 2000**

By the Commission:

1\. In this Order, we dismiss in part and deny in part the March 31,
1999 application for review filed by Mark H. Fulling of the *Forfeiture
Order*[^1] in this proceeding. 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, the former Compliance and Information Bureau found Mr. Fulling
liable for a monetary forfeiture in the amount of \$8,000 for operation
of an unlicensed FM broadcast station, in willful violation of Section
301 of the Act, 47 U.S.C. § 301. For the reasons discussed below, we
dismiss the application in part as procedurally defective, deny the
remainder of the application, and affirm the \$8,000 forfeiture.

**BACKGROUND**

2\. In response to a complaint regarding an unlicensed radio station
broadcasting on the frequency of 102.1 MHz in Garden City, Kansas, the
Commission's Kansas City Field Office verified that no license had been
issued for operation on that frequency in that location. The agent
determined by monitoring that the unlicensed radio station was
transmitting from Mr. Fulling's residence. On August 26, 1998, the agent
attempted to inspect the station. At that time, Mr. Fulling admitted
that he was operating with nine watts of power. Mr. Fulling also stated
that he was aware that the Commission was considering changing the
broadcast rules to allow low-power FM broadcasts such as his operation,
but refused to allow the inspection. Mr. Fulling was given a written
warning informing him of the penalties for unlicensed broadcast
operations on August 26, 1998.

3\. On September 2, 1998, the District Director of the Kansas City Field
Office issued a Notice of Apparent Liability for a monetary forfeiture
in the amount of \$8,000 to Mr. Fulling for willful and repeated
violations of Section 301 of the Act. In his written response to the
NAL, Mr. Fulling denied committing any violations of any of the
Commission's regulations, and claimed that his radio equipment met or
exceeded Commission specifications, that his broadcasts did not cause
interference to any licensed radio station, and that he did not intend
to broadcast again without a license. The *Forfeiture Order* released on
March 1, 1999 affirmed the forfeiture, stating that Mr. Fulling's
reliance on the arguments noted above was misplaced and only served as
an admission to the violation of Section 301 of the Act.[^2]

4\. In his application for review, Mr. Fulling contends that (1) the
Commission committed prejudicial procedural error by failing to mail a
copy of the *Forfeiture Order* to him or his attorney "within a
reasonable time" after it was released;[^3] (2) the *Forfeiture Order*
should be dismissed or stayed pending the outcome of the low power FM
rulemaking; (3) the *Forfeiture Order* erroneously found that Mr.
Fulling admitted to operating broadcast equipment without a license; (4)
the Commission failed to properly apply the statutory penalty factors
and downward adjustment criteria set out in its Forfeiture Policy
Statement; and (5) there was no evidence that the Commission took into
account Mr. Fulling's ability to pay, "as required by statute," in
assessing the forfeiture amount.[^4]

# DISCUSSION

5\. With the exception of the claim that he did not admit to operating
broadcast equipment without a license, Mr. Fulling's arguments are
procedurally barred by Section 1.115(c) of our rules because they rely
on questions of fact and law upon which the designated authority has
been afforded no opportunity to pass. *See* 47 C.F.R. 1.115(c);
*American Mobilephone, Inc*., FCC 00-15, 2000 WL 29952 (released January
18, 2000); *Courtesy Communications, Inc.,* 14 FCC Rcd 4198, 4202-4203
(1999); *Kevin Johnson*, 9 FCC Rcd 2471, 2473 (1993); *Sherry Rullman*,
8 FCC Rcd 4012 (1993). The proper procedure would have been for Mr.
Fulling to file a petition for reconsideration of the *Forfeiture
Order*, pursuant to Section 1.106 of the Commission's Rules, 47 C.F.R.
§ 1.106.

6\. The finding that Mr. Fulling admitted that he was operating the
station without a license is based on comments made by Mr. Fulling in
the presence of the FCC agent and a local police officer during the
August 26, 1998 attempted inspection of Mr. Fulling's unlicensed
station. When the officer and the FCC agent approached Mr. Fulling at
his residence, Mr. Fulling indicated that he knew why they wanted to
speak to him, and stated that he was expecting them because he had
spotted the direction finding vehicle the previous evening. Mr. Fulling
informed the officer and FCC agent that he was only using nine watts of
power and that he was aware that the Commission had been looking at
changing the Rules to allow community and neighborhood broadcasting such
as his operation. He also admitted to operating without a license, after
refusing to allow the agent to enter the premises to inspect the
station. Although Mr. Fulling now claims he did not admit to operating
the station without license, the foregoing facts belie that assertion.

**ORDERING CLAUSES**

7\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 1.115(c) of
the Rules, 47 C.F.R. § 1.115(c), Mark H. Fulling's application for
review of the *Forfeiture Order* for NAL No. 815KC0004 **IS DISMISSED IN
PART AND DENIED IN PART**.

8\. **IT IS FURTHER 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 must pay the amount of \$8,000 within thirty
(30) days of the release date of this Order. Payment may be made by
check or money order, drawn on a U.S. financial institution, payable to
the Federal Communications Commission. Payment may also be made by
credit card with the appropriate documentation.[^5] The remittance
should be marked "NAL Acct. No. 815KC0004" and mailed to the following
address:

Federal Communications Commission

P.O. Box 73482

Chicago, Illinois 60673‑7482

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 by
certified mail, return‑receipt requested, to Mark H. Fulling, in care of
his counsel of record, Dennis J. Highberger, 1301 Vermont, Lawrence,
Kansas 66044.

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

[^1]: 14 FCC Rcd 3479 (Compl. & Inf. Bur. 1999).

[^2]: *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).

[^3]: Mr. Fulling contends that the *Forfeiture Order* was mailed eight
    days after its release.

[^4]: Mr. Fulling also contends that the ban on most low-power FM
    broadcasting violates the First Amendment to the U.S. Constitution,
    and that assessment of a forfeiture without a hearing violates the
    Fifth Amendment to the Constitution, but explicitly reserves these
    arguments for judicial review.

[^5]: ^?^ 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. Requests for installment plans should be mailed to:
    Chief, Credit and Debt Management Center, 445 Twelfth Street, S.W.,
    Washington, D.C. 20554. For information regarding credit card
    payments, the Chief, Credit and Debt Management Center, should be
    contacted at (202) 418‑1995.