**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | EB-08-AT-0212                   |
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| Dale Lloyd Allred                | ) | NAL/Acct. No. 200932480001      |
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| Tunnel Hill, Georgia             | ) | FRN 0018065417                  |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
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|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER {#forfeiture-order .unnumbered}

**Adopted:** November 14, 2008 **Released:** November 18, 2008

By the Regional Director, South Central Region, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of one thousand five hundred dollars
    (\$1,500) to Dale Lloyd Allred of Tunnel Hill, Georgia for willful
    and repeated violation of Sections 301 and 333 of the Communications
    Act of 1934, as amended ("Act").[^1] The noted violations involve
    Mr. Allred's operation of an unlicensed transmitter on the frequency
    157.5675 MHz, in Dalton, Georgia and interference with licensed
    radio communications.

# BACKGROUND

2.  On August 8, 2008, in response to several complaints of interference
    to school bus radio operations from Dalton Communications, Inc.,
    licensee with call sign WQFN711 ("Dalton Communications"), agents
    from the Commission's Atlanta Office of the Enforcement Bureau
    ("Atlanta Office") monitored the frequency 157.5675 MHz in Dalton,
    Georgia and observed repeated radio transmissions being transmitted
    directly on top of school bus transmissions, often disrupting the
    school bus radio transmissions.[^2] The agents, using a mobile
    direction--finding vehicle, identified the location of the
    interfering radio transmissions as the office and radio shop for
    Tri-County Communications ("TCC Shop").

3.  On that same day, the agents from the Atlanta Office conducted an
    inspection of radio equipment at the TCC Shop and interviewed TCC
    Shop's chief executive officer, Mr. Allred, who admitted that he had
    intentionally operated a radio transmitter on 157.5675 MHz to cause
    the interference. Mr. Allred also stated that he had transmitted on
    157.5675 MHz on other days during the summer months. Mr. Allred
    explained that he was interfering with Dalton Communications'
    transmissions, because Dalton Communications had taken the school
    bus communications contract away from his company. Mr. Allred
    identified the handheld Kenwood model transceiver that he used to
    transmit on 157.5675 MHz, and the agents performed a test
    transmission verifying that the unit operated on 157.5675 MHz.

4.  According to the manufacturer, Kenwood only manufactures hand-held
    transceivers for operation under Parts 90, 97, and 95 of the
    Commission's Rules ("Rules"). Accordingly, use of the Kenwood
    transceiver to operate on 157.5675 MHz exceeded the limits for
    operation under Part 15 of the Rules and therefore required a
    license.[^3] A search of the Commission's databases revealed no
    authorization to operate on 157.5675 MHz from the TCC Shop. Indeed,
    Dalton Communications is the only licensee authorized to operate on
    157.5675 MHz in Dalton, GA.

5.  On October 16, 2008, the Atlanta City Office issued a *Notice of
    Apparent Liability for Forfeiture* to Mr. Allred in the amount of
    seventeen thousand dollars (\$17,000) for the apparent willful and
    repeated violation of Sections 301 and 333 of the Act.[^4] Mr.
    Allred submitted a response to the *NAL* requesting cancellation or
    reduction of the proposed forfeiture.

# DISCUSSION

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act'),[^5] Section 1.80 of the Rules,[^6] 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) ("*Forfeiture
    Policy Statement*"). In examining Mr. Allred'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.[^7]

7.  Section 301 of the Act states that "\[n\]o person shall use or
    operate any apparatus for the transmission of energy or
    communications or signals by radio ... except under and in
    accordance with this Act and with a license in that behalf granted
    under the provisions of this Act." On August 8, 2008, agents from
    the Atlanta Office, using direction finding techniques, determined
    that a transmission on 157.5675 MHz emanated from the TCC Shop in
    Dalton, GA. The agents interviewed Mr. Allred, who admitted that he
    had intentionally transmitted on that frequency on several days over
    the course of the summer. Mr. Allred showed the agents his handheld
    transceiver, which was capable of operating on 157.5675 MHz.

8.  Section 333 of the Act states that "\[n\]o person shall willfully or
    maliciously interfere with or cause interference to any radio
    communications of any station licensed ... under this Act." The
    Atlanta Office received several complaints from Dalton
    Communications that someone was interfering with its licensed
    communications on 157.5675 MHz. On August 8, 2008, agents from the
    Atlanta Office observed key clicks and DTMF tones disrupting school
    bus communications on 157.5675 MHz. On August 8, 2008, agents from
    the Atlanta Office determined that the interfering transmissions on
    157.5675 were emanating from the TCC Shop in Dalton, GA. On August
    8, 2008, Mr. Allred admitted to operating a handheld transceiver on
    157.5675 MHz to interfere with Dalton Communications' licensed
    transmissions. Mr. Allred stated that he had done so on several days
    over the course of the summer.

9.  In response to the *NAL*, Mr. Allred denies that his operation was
    intentional or that he maliciously caused interference to the school
    bus communications. He claims that his equipment was mounted
    incorrectly in his service vehicle which caused the "PTT of the VHF
    to mash against the base of the UHF and go into the TX by itself."
    He also states that he was intimidated by the police officer who
    accompanied the agents during the interview and that he would have
    admitted to anything at the time.

10. We do not find Mr. Allred's response to the *NAL* reliable. Mr.
    Allred did not simply respond "yes" or "no" to the agents' questions
    during the inspection. Mr. Allred admitted to operating his handheld
    transmitter to interfere with Dalton Communications' school bus
    communications on several days over the course of the summer and
    explained his motivation for causing the interference, frustration
    at losing the communications contract to Dalton Communications. We
    do not find it likely that Mr. Allred would have fabricated all of
    the information that he provided, because he was intimidated by the
    police officer present during the interview. In addition, on August
    8, 2008, the agents' observed that the interfering communications
    ceased when bus driver communications ceased and did not resume
    until the driver discussions resumed. The timing of the interfering
    communications indicated that the transmissions were not random or
    unintentional. Thus, based on the totality of the circumstances, we
    will continue to rely on Mr. Allred's statements from the
    inspection, as reflected in the agents' contemporaneous notes.
    Moreover, Mr. Allred does not dispute that transmissions on 157.5675
    MHz were sent from his handheld transceiver on more than one day
    over the course of the summer. Thus, even assuming *arguendo* that
    the transmissions were not willful, he admitted that his operation
    was repeated and we need not find his violation of Section 301 of
    the Act to be willful to assess a forfeiture. However, based on the
    evidence before us, we find that Mr. Allred willfully[^8] and
    repeatedly[^9] violated Sections 301 and 333 of the Act on August 8,
    2008 and on several days throughout the summer by operating a radio
    transmitter on 157.5675 MHz without a license and by interfering
    with licensed communications.

11. In addition, Mr. Allred asserts that a \$17,000 forfeiture would
    produce a financial hardship and requests that the forfeiture be
    cancelled or significantly reduced. The Commission has determined
    that, in general, an entity\'s gross revenues are the best indicator
    of its ability to pay a forfeiture.[^10] After reviewing Mr.
    Allred's financial documentation, we conclude that a reduction of
    the forfeiture to \$1,500 would be appropriate.

12. We have examined Mr. Allred's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that a
    reduction of the proposed forfeiture to \$1,500 is warranted, based
    on Mr. Allred's documented inability to pay.

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III. **ORDERING CLAUSES**

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13. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules, Dale Lloyd Allred
    **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of one
    thousand five hundred dollars (\$1,500) for violations of Sections
    301 and 333 of the Act.[^11]

14. 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 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.   Please contact
    the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
    ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
    Mr. Allred will also send electronic notification on the date said
    payment is made to SCR-Response@fcc.gov.

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to Dale
    Lloyd Allred at his address of record.

FEDERAL COMMUNICATIONS COMMISSION

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 U.S.C §§ 301, 333.

[^2]: The interfering transmissions were brief microphone key "clicks"
    immediately followed by a series of DTMF tones.

[^3]: Section 15.209 of the Rules provides that non-licensed
    broadcasting in the 88-216 MHz band is permitted only if the field
    strength of the transmission does not exceed 150 μV/m at three
    meters. 47 C.F.R. § 15.209. Mr. Allred's transmissions triggered
    Dalton Communications' repeater, which was located 3.7 miles away
    from the TCC Shop. Devices compliant with Part 15 typically have a
    range far less than this distance.

[^4]: *N**otice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200932480001 (Enf. Bur., Atlanta Office, October 16, 2008)
    ("*NAL*").

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 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).

[^9]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^10]: *See PJB Communications of Virginia, Inc*., 7 FCC Rcd 2088, 2089
    (1992) (forfeiture not deemed excessive where it represented
    approximately 2.02 percent of the violator's gross revenues); *Local
    Long Distance, Inc.,* 16 FCC Rcd 24385 (2000) (forfeiture not deemed
    excessive where it represented approximately 7.9 percent of the
    violator's gross revenues); *Hoosier Broadcasting Corporation,* 15
    FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues).

[^11]: 47 U.S.C. §§ 301, 333, 503(b); 47 C.F.R. §§ 0.111, 0.311,
    1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).