**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

) **File No.: EB-98-HU-147**

# Leonard D. Martin )

> ) **NAL/Acct. No.: X3254-003**

Houston, TX )

**FORFEITURE ORDER**

**Adopted: July 11, 2000** **Released: July 12, 2000**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this *Forfeiture Order* ("Order"), we set aside the previously
    issued *Forfeiture Order* in this matter,[^1] and we issue a
    monetary forfeiture in the amount of four thousand dollars (\$4,000)
    against Leonard D. Martin for willfully and repeatedly violating
    Sections 301 and 303(n) of the Communications Act of 1934, as
    amended ("the Act"). [^2] The noted violations involve Mr. Martin's
    operation of a two-way radio station without Commission
    authorization and his refusal to allow inspections of his radio
    installation.

2.  On March 3, 2000, the Houston Resident Agent Office ("Houston
    Office") issued a Notice of Apparent Liability for Forfeiture
    ("NAL") in the amount of seventeen thousand dollars (\$17,000) to
    Mr. Martin for the referenced violations.[^3] On June 26, 2000, the
    Enforcement Bureau ("Bureau") adopted a *Forfeiture Order* assessing
    a forfeiture of \$17,000 against Mr. Martin based, in part, on Mr.
    Martin's failure to file a response to the NAL. Unbeknownst to the
    Bureau, Mr. Martin had, in fact, filed a response to the NAL with
    the Commission on April 6, 2000. However, Mr. Martin's response was
    misrouted and the Bureau did not become aware of it until June
    27, 2000. Because Mr. Martin actually did respond to the NAL, we
    will set aside the *Forfeiture Order* adopted on June 26, 2000,
    pursuant to Section 1.113(b) of the Commission's Rules
    ("Rules"),[^4] and consider his response to the NAL in this Order.

**II.** **BACKGROUND**

3\. Mr. Martin is the former licensee of amateur station KC5WHN. By
letter of November 3, 1998, the Commission notified Mr. Martin of
complaints concerning a station identifying as KC5WHN. The complaints
asserted that the station identifying as KC5WHN was operating on
frequencies which were not authorized for that station. In his telephone
response to that letter, Mr. Martin denied the alleged unauthorized
operation.

4\. On February 27, 1999, an agent from the Houston Office, using a
mobile automatic direction finding ("MADF") vehicle, observed voice
radio transmissions on frequencies 27.535 and 27.545 MHz. Frequency
27.535 MHz is allocated exclusively to Industrial radio stations.
Frequency 27.545 MHz is allocated exclusively to United States
Government radio stations. The transmissions were unidentified, but the
operator responded to the name "Leonard." Using the MADF vehicle, the
agent determined that the source of the transmissions was an antenna
mounted on the residence at 4415 Spellman, Houston, Texas, which was
then the address of record for Mr. Martin's amateur service license.
There was no record of a Commission authorization permitting Mr. Martin
to operate on 27.535 MHz or 27.545 MHz.

5\. On March 15, 1999, an agent from the Houston Office, using a MADF
vehicle, observed voice radio transmissions on 27.370 MHz, a frequency
allocated as a "guard" frequency between authorized channels in the
Citizens Band Radio Service. The operator identified himself as
"Leonard." Using the MADF vehicle, the agent determined that the source
of the transmissions was a vertical antenna mounted on the residence at
4415 Spellman, Houston, Texas. Immediately after his monitoring
observations, the agent knocked on the door of the residence. Mr. Martin
answered the door and refused the agent's request to inspect the radio
station located in the residence. The agent informed Mr. Martin that his
previously observed operation on 27.535 and 27.545 MHz was unlicensed
and in violation of Section 301 of the Act because Mr. Martin held no
Commission authorization to operate on those frequencies. The agent also
informed Mr. Martin that his refusal to allow an inspection constituted
violation of Section 303(n) of the Act.

6\. On April 2, 1999, the Houston Office issued Mr. Martin an Official
Notice of Violation ("NOV") for violations of Sections 301 and 303(n) of
the Act. In Mr. Martin's April 7, 1999, response to the NOV, he stated:
"I now fully understand that operation on the frequencies outlined is a
violation ... that the FCC has the authority to inspect all radio
installations... \[and\] ... I promise no further action by the
Commission will be necessary to insure my complete compliance with the
FCC Rules...."

7\. On July 22, 1999, Mr. Martin submitted his amateur service license
for KC5WHN to the Commission for cancellation. By letter of July 23,
1999, the Commission acknowledged receipt of the license, and confirmed
that it was cancelled effective July 23, 1999. The letter also warned
Mr. Martin that any unlicensed radio operation would constitute
violation of Section 301 of the Act.

8\. On October 19, 1999, an agent from the Houston Office investigated
an interference complaint against Mr. Martin. The agent, using a MADF
vehicle, observed voice radio transmissions on frequency 27.535 MHz, and
determined that the source of those transmissions was a vertical antenna
mounted on Mr. Martin's residence, at 4415 Spellman, Houston, Texas.
This frequency is allocated exclusively to licensed Industrial radio
stations. There was no record of a Commission authorization permitting
Mr. Martin to operate on 27.535 MHz.

9\. On October 26, 1999, an agent from the Houston Office, using a MADF
vehicle, observed voice radio transmissions on 27.455 MHz, a frequency
allocated exclusively to Industrial radio stations. Using the MADF
vehicle, the agent determined that the source of those transmissions was
a vertical antenna mounted on Mr. Martin's residence, at 4415 Spellman,
Houston, Texas. There was no record of a Commission authorization
permitting Mr. Martin to operate on 27.455 MHz. Immediately after the
monitoring, the agent knocked on the door of the residence and requested
permission to inspect the station located there. Mr. Martin, who
answered the door, refused to allow an inspection.

10\. Based on the above, on March 3, 2000, the Houston Office issued a
NAL in the amount of seventeen thousand dollars (\$17,000) to Mr. Martin
for violations of Sections 301 and 303(n) of the Act.

11\. In his response to the NAL, Mr. Martin does not deny that he
committed the referenced violations. Iinstead, he requests cancellation
of the forfeiture proposed by the NAL. Mr. Martin contends that he is
unable pay a \$17,000 forfeiture. As support for this claim, he submits
copies of his 1996, 1997, and 1998 federal income tax returns. In
addition, Mr. Martin states that he is "prepared to take all steps in
good faith to insure further actions by the Commission . . . will not be
necessary." Specifically, Mr. Martin states that he agrees to:
permanently dismantle and sell or donate all of his radio transmitting
equipment and antenna and provide proof of such to the Commission;
forfeit all proceeds of such sales to the Commission or to a charitable
organization of his choice, as determined most appropriate by the
Commission; and permit an authorized Commission agent to inspect his
residence to ensure all equipment has been removed.

**III. DISCUSSION**

12\. As the NAL explicitly states, the forfeiture amount in this case
was assessed in accordance with Section 503 of the 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) ("*Policy Statement*"). Section 503(b) of the Act requires that,
in examining Mr. Martin's response, 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]

13\. Section 301 of the Act prohibits radio operation "except under and
in accordance with this Act and with a license in that behalf granted
under the provisions of this Act." Section 303(n) of the Act authorizes
the Commission "to inspect all radio installations required to be
licensed . . ."

14\. Mr. Martin does not deny the violations alleged in the NAL. In view
of the facts set forth above, we conclude that Mr. Martin operated
without authorization on frequencies 27.535 and 27.545 MHz on February
27, 1999, 27.535 MHz on October 19, 1999, and 27.455 MHz on October 26,
1999, in willful and repeated violation of Section 301 of the Act.
Additionally, we find that, on March 15 and October 26, 1999, Mr. Martin
refused to make his radio installation available for inspection, in
willful and repeated violation of Section 303(n) of the Act.

15\. In view of his past history, we can not rely on Mr. Martin's
promises of remedial action. Mr. Martin's most recent violations
occurred despite three written warnings and at least one verbal warning
from the Commission, and despite Mr. Martin's promise, in his response
to the NOV, that he would comply with the Commission's Rules.[^8] In any
event, as the Commission has stated previously, subsequent remedial
action will not nullify a forfeiture penalty. *See KGVH, Inc.*, 42 FCC
2d 258, 259 (1973).

16\. We have examined Mr. Martin's response to the NAL in light of the
above statutory factors and the factors set forth in the *Policy
Statement*. Taking all of these factors into account, including Mr.
Martin's limited ability to pay the full amount as demonstrated in his
returns, the serious nature of his violations and the continuation of
his violations after warnings and promises of compliance, we conclude
that cancellation of the proposed forfeiture is not justified and that
the proper forfeiture amount is \$4,000.

##### IV. ORDERING CLAUSES

17\. **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section
1.113(b) of the Rules, the *Forfeiture Order* (DA 00-1428) released June
26, 2000, **IS SET ASIDE**.

18\. **IT IS FURTHER ORDERED** that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^9] Leonard
D. Martin**, IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
\$4,000 for willful and repeated violation of the provisions of Sections
301 and 303(n) of the Act.

19\. 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.[^10] Payment 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 Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note "NAL/Acct. No. X3254-003" referenced above.
Requests for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.[^11]

20\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
by Certified Mail \-- Return Receipt Requested, to Mr. Leonard D. Martin
at 4415 Spellman, Houston, Texas 77035.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: *Forfeiture Order*, DA 00-1428 (Enf. Bur., released June 27,
    2000).

[^2]: 47 U.S.C. §§ 301 and 303(n).

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL Acct. No.
    X3254-003 (Enf. Bur., Houston Office, released March 3, 2000).

[^4]: 47 C.F.R. § 1.113(b).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: ^7^ 47 U.S.C. § 503(b)(2)(D).

[^8]: *See* para. 6 *infra*.

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^10]: 47 U.S.C. § 504(a).

[^11]: *See* 47 C.F.R. § 1.1914.