**Before the**

**Federal Communications Commission**

###  Washington, D.C. 20554

In the matter of )

)

Mike Morrison ) File Number: EB-00-AT-1083

3880 Nowlin Road )

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

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

#### Released: October 11, 2000

By the Enforcement Bureau, Atlanta Office:

######### INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mike Morrison ("Morrison*"*), a.k.a. Morrison Sales Company, has
apparently violated Section 302 of the Communications Act of 1934, as
amended[^1]("the Act"), by marketing a non-compliant transmitter
("SKY-2000") for use in the FM broadcast band. We conclude that Morrison
is apparently liable for a forfeiture in the amount of two thousand
dollars (\$2,000).

######### BACKGROUND

2\. On September 28, 1999, agents from the Enforcement Bureau's Atlanta
Office began an investigation into the marketing of low power FM
transmitters as a result of a local news report featuring the
transmitter. Agents located and conducted field strength measurements of
eleven SKY-2000 FM transmitters in operation that were manufactured and
distributed by Skywave Electronics, Rockford, IL and marketed by
Morrison. The measurements revealed that all eleven transmitters were
operating in excess of the authorized limits as prescribed in the
Commission rules.[^2]

3.  On September 28, 1999 during an inspection of a Skywave 2000
    transmitter and on

October 15, 1999 during an office interview, the Atlanta Office verbally
warned Morrison regarding the penalties for continuing to market
non-compliant RF devices. It was Morrison's contention that Skywave
Electronics, Inc. had led him to believe (by virtue of their obtaining a
Grant of Equipment Authorization/Certification and affixing a FCC
Identifier to

the device) that their devices were approved for marketing. The Atlanta
Office informed

Morrison that it was still his responsibility as the marketer of an RF
device to ensure that the

device met the requirements of the Commission's rules even though the
device had a FCC Identifier affixed to it. On November 25, 1999, the
Atlanta Office issued Morrison an Official Notice for violating Section
302 of the Act for marketing non-compliant RF devices.[^3] On December
2, 1999, the Atlanta Office received a written response from Morrison
indicating his intent to no longer market Skywave products.

4.  On August 16, 2000, an agent from the Atlanta Office inspected a low
    power FM

transmitter operating at a restaurant in Marietta, Georgia. The device
was identified as a SKY-2000 FM transmitter and was found to be
operating in excess of the authorized limits as prescribed in the
Commission rules.[^4] The owner of the restaurant stated that Morrison
sold them the SKY-2000 transmitter in May 2000. Morrison confirmed the
sale of the device during a telephone interview with an agent of the
Atlanta Office on August 17, 2000.

######### DISCUSSION

5.  Section 302 of the Act authorizes the Commission to regulate
    equipment capable of

emitting radio frequency energy that may cause interference to radio
communications. The Act further states that "no person shall
manufacture, import, sell, offer for sale, or ship devices or home
electronic equipment and systems, or use devices, which fail to comply
with regulations promulgated pursuant to this section".[^5]

6.  Morrison, as a marketer of the SKY-2000 transmitter, is responsible
    for ensuring that

it is compliant with Commission rules.[^6] He was repeatedly warned,
verbally and in writing,[^7] about the penalties for marketing
non-compliant devices, yet, he continued to market the non-compliant
device in violation of Section 302 of the Act.[^8]

7.  Section 503(b) of the Act, 47 U.S.C. § 503(b)(1),[^9] provides that
    any person who

willfully[^10] and repeatedly[^11] fails to comply with the terms and
conditions of the Commission's rules shall be liable for a forfeiture
penalty. Based on the above evidence, we find that Morrison did
willfully and repeatedly violated Section 302 of the Act.[^12].

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*"), the base forfeiture
amounts are \$2,000 for the marketing of non-compliance Part 15 devices.
In assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of the
violation(s), 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.[^13] Morrison's violations were
repeated and willful. Applying the *Forfeiture Policy Statement* and
statutory factors to the instant case, a \$2,000 forfeiture is
warranted.

######### ORDERING CLAUSES

9.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^14], and

Sections 0.111, 0.311 and 1.80 of the Commission's Rules[^15], Mike
Morrison is hereby NOTIFIED of his APPARENT LIABILITY FOR A FORFEITURE
in the amount of two thousand dollars (\$2,000) for violating Section
302 of the Act.[^16]

10\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's rules[^17], within thirty days of the released date of this
NOTICE OF APPARENT LIABILITY, Mike Morrison SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.

11\. Payment of the forfeiture may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995 or by
mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note the NAL/Acct. No.
X3248005.

12\. The response if any must be mailed to Office of the Secretary,
Federal Communications Commission, 445 12^th^ Street, S.W., Washington,
D.C. 20554, Attn: Enforcement Bureau --TPSD, NAL/Acct. No. X3248005, and
must include the NAL/Acct. No. X3248005.

13\. 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; 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.

14\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12^th^ Street, S.W., Washington, D.C.
20554.[^18]

15\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
Mike Morrison, 3880 Nowlin Road, Kennesaw, GA 30144.

###### FEDERAL COMMUNICATIONS COMMISSION

Fred L. Broce

District Director

Atlanta Office

[^1]: Section 302 of the Act, 47 U.S.C. § 302

[^2]: 47 C.F.R. § 15.239(b)

[^3]: Section 302 of the Act, 47 U.S.C. § 302

[^4]: 47 C.F.R. § 15.239(b)

[^5]: Section 302 of the Act, 47 U.S.C. § 302

[^6]: 47 C.F.R. § 15.201(b)

[^7]: Issued an Official Notice on November 25, 1999

[^8]: Section 302 of the Act, 47 U.S.C. § 302

[^9]: 47 U.S.C. § 503(b)(1). *See also* Section 1.80(a)(1) and (2), 47
    C.F.R. § 1.80(a)(1) and (2)

[^10]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to 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 ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^11]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to 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."

[^12]: Section 302 of the Act, 47 U.S.C. § 302

[^13]: 47 U.S.C. § 503(b)(2)(D). *See also Forfeiture Policy Statement*,
    12 FCC Rcd at 17100-01 (discussion of upward and downward adjustment
    factors).

[^14]: 47 U.S.C. § 503(b)

[^15]: 47 C.F.R. §§ 0.111, 0.311, 1.80

[^16]: Section 302 of the Act, 47 U.S.C. § 302

[^17]: 47 C.F.R. § 1.80

[^18]: *See* 47 C.F.R. § 1.1914