**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

> ) **NAL/Acct. No. 915ST0003**

William L. Leavell ) Case No. 99ST10

Seattle, Washington 98818 )

**FORFEITURE ORDER**

**Adopted:** **February 8, 2000** **Released: February 9, 2000**

By the Chief, Enforcement Bureau:

1\. This order imposes a forfeiture against William L. Leavell, in the
amount of \$2,000, 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 willful
violation of Section 303(n) of the Act, 47 U.S.C. § 303(n), and Section
95.426 of the Rules, 47 C.F.R. § 95.426, regarding refusal to allow an
inspection of radio station equipment.

**BACKGROUND**

2\. On November 2, 1998, agents of the Commission's Seattle Field Office
investigated complaints that Mr. Leavell's Citizens Band ("CB") radio
operations were causing widespread interference to telephones and home
electronic devices in the area. Mr. Leavell was not on the air when the
agents arrived in the neighborhood, but spoke with the agents when they
knocked at the door, identified himself as the CB operator, and admitted
to having CB radio equipment on the premises. However, when the agents
asked to inspect the CB equipment, Mr. Leavell stated that he was ill
and did not want to allow inspection at that time. The agents made
arrangements to come back the next morning to inspect the station. On
November 3, 1998, the agents found Mr. Leavell's CB equipment to be FCC
type-accepted and installed in a correct manner. They informed Mr.
Leavell that his station, as inspected on November 3, 1998, was in
compliance with the CB rules, but that future complaints of severe
interference would indicate that he had modified the equipment or added
equipment to his station which does not comply with the FCC\'s CB rules
for type-accepted devices. The Seattle Field Office subsequently sent
Mr. Leavell a written warning letter, on November 4, 1998, describing
the inspection findings and reminding him that operating with modified
equipment or power amplifiers in the CB band would invalidate his
operating authority for the CB radio. The letter also stated that
operating non-FCC Type-Accepted CB equipment would be considered
unlicensed operation in violation of Section 301 of the Act, and could
subject him to penalties under Sections 501, 503 and/or 510 of the Act.

3\. On December 17, 1998, agents from the Seattle Field Office conducted
another investigation of Mr. Leavell's CB operations, in response to
additional complaints from Mr. Leavell\'s neighbors. Based on their
knowledge of CB radio systems, their engineering experience, and the
power of the CB radio signal as received on the equipment in the agents'
vehicle, the agents determined that the field strength of the signal
transmitting from Mr. Leavell\'s station exceeded the expected level for
an FCC Type-Accepted four watt CB transmitter. When questioned, Mr.
Leavell admitted that he had been operating the CB radio at the time the
agents were monitoring, but he refused to allow the agents to inspect
his transmitting system. Even upon being informed that refusal to allow
an inspection of his CB equipment was punishable by fine, Mr. Leavell
refused to allow the inspection as requested. On March 4, 1999, the
Seattle Field Office issued a Notice of Apparent Liability ("NAL") in
the amount of \$11,000, citing Mr. Leavell for operating a CB radio with
excessive power and refusal to allow an inspection.

4\. In his written response to the NAL, Mr. Leavell denies that he
operated his CB radio with greater power than allowed by the Rules, and
contends that he did not deny permission to inspect his equipment
because the Rules do not require CB operators to provide immediate
availability of the equipment. He further claims that the Commission is
in violation of Federal law and proper procedure because: (1) he
received no citation of the violation prior to imposition of the
forfeiture; (2) he wasn't granted a personal interview with the
Commission to discuss the violation; (3) he was denied a fact-finding
hearing before the Commission or an administrative law judge; and (4)
any forfeiture penalty issued against him cannot exceed \$10,000.

**DISCUSSION**

5\. By operating a CB radio station, Mr. Leavell is responsible for
knowledge of, and compliance with, the applicable sections of the Rules.
*See* 47 C.F.R. § 95.402. As noted in the NAL, section 95.426 of the
Rules requires a CB radio operator to make his/her CB station and the
station\'s records available for inspection by an authorized FCC
representative. 47 C.F.R. § 95.426; *see also* 47 U.S.C. § 303(n). The
right to inspect a station is one of the cornerstones of the
Commission\'s ability to ensure compliance with the Act and the Rules.
*See Norfolk Southern Railway Company*, 11 FCC Rcd 519 (1996). A refusal
to allow or a significant delay in inspection can often shelter
egregious violations and is thus can frustrate enforcement efforts.
*Id*. Hence, the FCC is not required to inspect by appointment. Mr.
Leavell refused to allow properly identified FCC agents to inspect his
radio station when requested, in violation of both the Act and the
Rules. His refusal to allow the inspection effectively prevented the
Commission from verifying his claim that he was not operating above the
power limits established in the Rules when the agents detected
non-compliant, higher signal levels on December 17, 1998.

6\. Although we reject the procedural arguments raised by Mr. Leavell as
noted below, under all the circumstances here, we believe it is
appropriate to lower the amount of this forfeiture to \$2,000. With
regard to the procedural claims, we note that Section 503(b)(5) of the
Act, 47 U.S.C. § 503(b)(5), provides that a warning must be given
initially to a party who is not a licensee unless the party is engaged
in activities for which a license or some form of Commission
authorization is required.[^1] Although CB operators are not required to
have individual licenses, they operate under the authority granted by
section 95.404 of the Rules, 47 C.F.R. § 95.404. Because Mr. Leavell
operates under section 95.404, which is effectively a blanket license to
CB operators, the Commission was not required to send him a citation
prior to assessing a forfeiture, or to grant him an opportunity for a
personal interview.[^2] Similarly, Mr. Leavell is not entitled to a
"fact-finding hearing" as a matter of right, because section
503(b)(3)(A) of the Act explicitly states that such hearings may be held
*at the discretion of the Commission*. 47 U.S.C. § 503(b)(3)(A). We also
note that the Commission has authority to impose forfeitures of up to
\$11,000 per day, per violation.[^3] Nonetheless, we do recognize that
Mr. Leavell may have misunderstood his obligations to allow inspection.
Taking into account all the factors required under 47 U.S.C.
§503(b)(2)(D), we find that the proposed forfeiture should be reduced to
\$2,000.

**ORDERING CLAUSES**

7\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, and Section 1.80 of the Rules, 47 C.F.R. § 1.80, William L.
Leavell **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of \$2,000
for violation of Section 303(n) of the Act and Section 95.426 of the
Rules.

8\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80(f) of the
Rules, William L. Leavell shall, within thirty (30) days of the release
of this Forfeiture Order, pay the full amount of the forfeiture.
Forfeitures shall be paid by check, credit card, or money order payable
to the Federal Communications Commission.[^4] The remittance should be
marked "NAL/Acct. No. 915ST0003" and mailed to the following address:

Federal Communications Commission

Post Office Box 73482

Chicago, IL 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 12^th^ Street, S.W.

Washington, D.C. 20554

> ATTN: Technical & Public Safety Division
>
> Enforcement Bureau

Forfeiture penalties not paid within 30 days will be referred to the
U.S. Attorney for recovery in a civil suit. *See* 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 William L. Leavell, in care
of his counsel of record.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: The Administrative Procedure Act defines a license as including
    "the whole or a part of an agency permit, certificate, approval,
    registration, charter, membership, statutory exemption, or other
    form of permission." *See* 5 U.S.C. § 551(8).

[^2]: In the instant case, however, the Commission did warn Mr. Leavell
    about his operation before issuing the NAL, both verbally, on
    November 3, 1998 and December 17, 1998, and in writing, on November
    4, 1998.

[^3]: 47 C.F.R. § 1.80(b)(3); *Amendment of Section 1.80 of the
    Commission's Rules*, 12 FCC Rcd 1038 (1997).

[^4]: Requests for payment under installment plans should be mailed to:
    Chief, Credit & Debt Management Center, 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,
    Credit & Debt Management Center, at (202) 418-1995 for more
    information on payments by credit card.