**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

James Lee Gaskey ) NAL/Acct. No. 915KC0002

5215 N. Pine Street )

Davenport, Iowa 52806 )

**FORFEITURE ORDER**

**Adopted:** December 29, 1999 **Released:** December 30, 1999

By the Chief, Enforcement Bureau:

1\. In this order, we issue a monetary forfeiture in the amount of
\$11,000 against James Lee Gaskey for willful violation of Section 301
of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C. §
301. The noted violation involves radio operation without a license.

2.  On April 28, 1999, the Commission's Kansas City, Missouri Field
    Office, pursuant to Section 503(b) of 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, issued the referenced Notice of Apparent Liability ("NAL")
    for a monetary forfeiture in the amount of \$11,000 to Mr. Gaskey
    for the noted violation. A response to the NAL was filed on behalf
    of Mr. Gaskey by his attorney on June 1, 1999. For the reasons
    discussed below, we affirm the \$11,000 forfeiture amount.

    **BACKGROUND**

3\. On August 10, 1998, the Office of the Chairman of the Federal
Communications Commission ("FCC") received a complaint concerning
interference to home electronic entertainment equipment, allegedly
caused by a Citizen's Band ("CB") radio station. The complainant
specifically named James Gaskey, of 5215 N. Pine Street, Davenport,
Iowa, as the operator of the CB radio station that was causing the
interference. The complainant stated that Mr. Gaskey had CB radio
stations in both his home and his pickup truck.

4\. On September 14, 1998, in response to the complaint of interference,
an FCC agent from the Kansas City Field Office issued a letter to the
radio operator at 5215 N. Pine Street, Davenport, Iowa, via certified
mail, return receipt requested. The letter informed the operator of the
regulations against unlicensed operation of radio equipment and the use
of external RF amplifiers and non-type accepted radio equipment in the
CB service. The letter also notified him that the penalties for
unlicensed operation could include a fine of up to \$11,000 and directed
the operator to submit a written response to the Kansas City Field
Office within 10 days of the receipt of the letter. According to the
signed return receipt from the U.S. Postal Service, dated September 16,
1998, Marge Gaskey was the recipient of the warning letter. Although the
Kansas City Field Office received the return receipt card from the
United States Post Office, the Kansas City Field Office did not receive
a written response to the warning letter.

5\. On October 5, 1998, the Kansas City Field Office issued a Notice of
Violation ("NOV") to Mr. James Gaskey and/or Marge Gaskey for failure to
respond to the letter dated September 14, 1998. *See* 47 C.F.R. §
95.422. On October 15, 1998, the Kansas City Field Office received a
response from Mr. Gaskey to the NOV. In his response, Mr. Gaskey denied
having an amplifier "in line" at his radio station, and stated that he
would shut the base station down until he had time to verify whether the
interference problem had ceased.

6\. On April 8, 1999, FCC agents from the Kansas City Field Office used
direction finding techniques to locate the source of a very strong,
wide-banded signal operating on 26.835 MHz.[^1] Using an FCC direction
finding vehicle, the agents located the source of the transmissions on
26.835 MHz and traced them to 5215 N. Pine Street, Davenport, Iowa.
After locating the source of the transmissions, the agents knocked on
the door of the residence and were greeted by Mr. Gaskey, who later
identified himself with an Iowa driver's license. Mr. Gaskey permitted
the FCC agents to enter the residence and inspect the station. During
the inspection, Mr. Gaskey admitted that he was operating the station
without an authorization. The unlicensed station consisted of a
non-certified radio transmitter connected to two external RF power
amplifiers, a frequency counter, and an in-line watt meter capable of
registering up to 5000 watts. The FCC agents determined that the station
operating on 26.835 MHz had an output power of 200 watts.

7\. Prior to knocking on the door of the residence, one of the FCC
agents had noticed several unusual boxes connected to coaxial cable
attached to an antenna in a 1996 Dodge pickup truck, Iowa License plate
number 516 HER, which was parked in the driveway of the residence. After
permitting the agents to inspect the radio station located inside the
residence, Mr. Gaskey allowed the agents to inspect his pickup truck in
the driveway. The agents discovered another radio station installed in
Mr. Gaskey's truck. The agents found a mobile radio station in the
truck, which was capable of operation on frequencies in the CB radio
spectrum, and consisted of a non-type accepted radio transmitter
connected to an external RF power amplifier and multimeter. Upon
completion of the inspection, the agents issued Mr. Gaskey a warning
letter, which informed him of the violation of Section 301 of the Act
and ordered him to immediately discontinue the unlicensed operation. At
the request of the FCC agents, Mr. Gaskey signed for receipt of the
letter.

8\. On April 28, 1999, the Kansas City Field Office issued the subject
NAL to Mr. Gaskey for his continued unlicensed operation on 26.835 MHz
from 5215 N. Pine Street, Davenport, Iowa, in violation of Section 301
of the Act.

9\. On June 1, 1999, the FCC received Mr. Gaskey's response to the NAL.
The response consisted of an undated document, entitled "Statement of
Income, Expenses, Assets & Liabilities For: James Lee Gaskey," a copy of
the first page of Mr. Gaskey's 1995, 1996 and 1997 federal income tax
returns, and a copy of Mr. Gaskey's letter previously received by the
Kansas City Field Office on October 15, 1998. No other information was
provided. The response did not refute the violation, nor did it
specifically request a rescission or reduction of the monetary
forfeiture amount.

**DISCUSSION**

10\. As the NAL explicitly states, the forfeiture amount in this case
was assessed in accordance with Section 503 of the Act, Section 1.80 of
the Rules, 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*, FCC 99-407, (rel.
Dec. 28, 1999) ("*Policy Statement*"). In examining Mr. Gaskey'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. 47 U.S.C. § 503(b)(2)(D).

11\. Section 301 of the Act explicitly prohibits entities from
transmitting energy, communications or signals by radio except under and
in accordance with the terms of the Act and of a license granted under
the provisions of the Act. 47 U.S.C. § 301. In the instant case, Mr.
Gaskey admitted during the April 8, 1999 inspection, that he operated a
non-certified radio transmitter for his radio station on 26.835 MHz
without a valid license. Thus, the violation was willful.[^2]

12\. Although Mr. Gaskey's response did not explicitly seek rescission
or a reduction of the forfeiture amount, we presume his submission of
the first page of his 1995, 1996 and 1997 tax returns and the "Statement
of Income, etc." were intended to demonstrate his inability to pay the
forfeiture. However, the purported statement of income submitted fails
to specify the year(s) for which the figures are applicable, and does
not indicate how the figures were prepared. Also, the figures in the
statement are not supported by any other documentation. With respect to
the tax information provided, Mr. Gaskey has supplied incomplete tax
returns inasmuch as he has provided only the first page of his tax
returns for 1995, 1996 and 1997. Without the entire tax returns, we are
unable to assess the amount of income earned during the relevant years.
The NAL clearly states, at footnote two, that a claim of inability to
pay should be supported by tax returns or other financial statements
prepared under generally acceptable accounting procedures for the most
recent three-year period. Undocumented statements of an individual's
size and financial condition do not meet the requirement of a
particularized showing of financial hardship or inability to pay. *See,
e.g., Barry A. Stevenson*, 12 FCC Rcd 1976, 1977 (1997) (three years of
financial statements or other reliable and objective documentation
accurately reflecting petitioner's current financial status required to
demonstrate inability to pay); *Timothy Harold Hoffman*, 11 FCC Rcd
17463, 17464 (1996) (individuals have submitted information such as
child support payments, tax liens, and garnishments to corroborate debts
or liabilities); *Macau Traders, Inc.,* 13 FCC Rcd 228, 233 (1998) (no
reduction of forfeiture warranted due to undue financial hardship where
violator provided no documentary evidence upon which to evaluate its
financial condition or ability to pay). *See also* 47 C.F.R. §
1.80(f)(3) ("Any showing as to why the forfeiture should be reduced
shall include a detailed factual statement and such documentation and
affidavits as may be pertinent.").

13\. We have examined Mr. Gaskey's response to the NAL pursuant to the
statutory factors above, and in conjunction with the *Policy Statement*
as well. As a result of our review, we conclude that Mr. Gaskey has
failed to provide a sufficient justification for reducing the forfeiture
amount. Therefore, we affirm the forfeiture amount of \$11,000.

14\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, and Section 1.80 of the Rules, and the Commission's *Policy
Statement*, James Lee Gaskey **IS LIABLE FOR A MONETARY FORFEITURE** in
the amount of \$11,000 for the willful violation of Section 301 of the
Act.

15\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80(f) of the
Rules, 47 C.F.R. § 1.80(f), James Lee Gaskey shall, within thirty (30)
days of the release of this Forfeiture Order, pay the amount of \$11,000
for violation of Section 301 of the Act.[^3] Payment of the forfeiture
shall 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.[^4]
The remittance should be marked "NAL/Acct. No. 915KC0002" and mailed to
the following address:

Federal Communications Commission

P.O. Box 73482

Chicago, Illinois 60673-7482

Petitions for reconsideration filed pursuant to Section 1.106 of the
Rules, 47 C.F.R. § 1.106, or applications for review filed pursuant to
Section 1.115 of the Rules, 47 C.F.R. § 1.115, must be received by the
Commission within thirty (30) days of the release of this order at the
following address:

Office of the Secretary

Federal Communications Commission

445 12th Street, S.W.

> Washington, D.C. 20554
>
> ATTN: Technical & Public Safety Division
>
> Enforcement Bureau

Forfeiture penalties not paid within thirty (30) days will be referred
to the U.S. Attorney for recovery in a civil suit. 47 U.S.C. § 504(a).

16\. **IT IS FURTHER ORDERED** that a copy of this order shall be sent
by certified mail, return receipt requested, to James Lee Gaskey, 5215
N. Pine Street, Davenport, Iowa 52806.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: This frequency is not available for use by CB stations and is not
    authorized for private use. *See* Sections 95.407 and 2.106 of the
    Rules, 47 C.F.R. §§ 95.407 and 2.106.

[^2]: ^2^ Section 312(f)(1) of the Act, 47 U.S.C. § 312(f), which also
    applies to Section 503(b) of the Act, provides: "\[t\]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 or by treaty ratified by the United States." *See Southern
    California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^3]: ^3^ Claims of inability to pay should be supported by tax returns
    or other financial statements prepared under generally accepted
    accounting principles for the most recent three year period.

[^4]: ^4^ Requests for installment plans should be mailed: Chief, Credit
    & Debt Management Center, Mail Stop 1110A2, 445 Twelfth Street,
    S.W., Washington, D.C. 20554. Payment for 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. Please contact
    Chief, Credit & Debt Management Center for information regarding
    credit card payments.