**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Paul E. Holcombe ) File No. EB-99-HU-077

)

Licensee of Amateur Radio Station K4TOF ) NAL/Acct. No. X3254-002

Houston, Texas )

)

)

)

## FORFEITURE ORDER 

**Adopted: May 2, 2000 Released: May 3, 2000**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Forfeiture Order ("Order"), we issue a monetary forfeiture
    in the amount of eight thousand dollars (\$8,000) against Paul E.
    Holcombe, licensee of amateur radio station K4TOF, Houston, Texas,
    for willful violation of Section 333 Communications Act of 1934, as
    amended ("the Act"),[^1] and Sections 97.101(d) and 97.119 of the
    Commission's Rules.[^2] The noted violations involve the operation
    of an amateur radio station so as to willfully or maliciously cause
    interference to radio communications and the transmission of
    unidentified amateur radio communications.

2.  On January 13, 2000, the Commission's Resident Agent Office in
    Houston, Texas, issued a Notice of Apparent Liability ("NAL") for a
    forfeiture in the amount of eight thousand dollars (\$8,000) to Mr.
    Holcombe.[^3] Mr. Holcombe filed a response on February 4, 2000.

**II.** **BACKGROUND**

3.  Between 1993 and 1999, the Commission's Houston Resident Agent
    Office received numerous complaints alleging intentional
    interference to users on the Memorial Emergency Repeater
    Association's 145.470/144.870 MHz amateur radio repeater in Houston
    ("MERA repeater"). The interference was allegedly caused by stations
    transmitting unidentified tones, inflammatory or derogatory remarks,
    and unmodulated signals, none of which were identified with an
    FCC-assigned call sign.

4.  On May 25, 1999, an FCC agent from the Houston Office, using a
    mobile automatic direction finding ("MADF") vehicle to monitor the
    MERA repeater, observed a radio signal consisting of unidentified
    tones and remarks being transmitted on the input frequency of the
    MERA repeater. The agent simultaneously monitored the output
    frequency of the MERA repeater and observed that this signal would
    transmit immediately after other stations began transmitting,
    resulting in interference to communications already in progress on
    the MERA repeater. At about 8:08 p.m., using the MADF equipment and
    direction-finding techniques, the agent determined that the source
    of the unidentified interfering transmissions was a silver Toyota
    bearing Texas license plate DVZ74F. This vehicle was registered to
    Paul E. Holcombe, licensee of amateur radio station K4TOF.
    Immediately thereafter, the Commission agent conducted an interview
    with Mr. Holcombe and inspected the vehicle. Inside the vehicle, the
    agent found an amateur radio transceiver which was tuned to the MERA
    repeater frequency pair and was capable of transmitting on the MERA
    repeater frequency pair. Although Mr. Holcombe admitted that he
    owned the vehicle and the amateur radio transceiver and that he was
    the licensee of amateur radio station K4TOF, he denied intentionally
    making any radio transmissions that day.

5.  On June 2, 1999, the Houston Office issued to Mr. Holcombe an
    Official Notice of Violation ("NOV") for willful and malicious
    interference to radio communications in violation of Section 333 of
    the Act and Section 97.101(c)[^4] of the Rules and for transmitting
    unidentified amateur radio communications in violation of Section
    97.119 of the Rules. In his June 4, 1999, response to the NOV, Mr.
    Holcombe stated that his amateur radio station may have been
    inadvertently activated on May 25, 1999, but he denied any intent to
    interfere with other stations. Mr. Holcombe also stated that he
    suffered from a nerve disorder in his hands which makes it difficult
    for him to manipulate the controls of the amateur radio transceiver
    in his vehicle.

6.  On January 13, 2000, the Houston Office issued the subject NAL,
    citing Mr. Holcombe for willful violations of Section 333 of the Act
    and Sections 97.101(d) and 97.119 of the Rules. In his February 4,
    2000, response to the NAL, Mr. Holcombe denies that the violations
    occurred. Mr. Holcombe asserts that there was a passenger in his car
    on May 25, 1999, Dennis Rogers, who is willing to testify that the
    alleged violations did not occur. Mr. Holcombe states that Mr.
    Rogers told the FCC agent at the time that the alleged violations
    did not take place, but the agent discounted his statement. In
    addition, Mr. Holcombe asserts that the NAL unfairly holds him
    responsible for violations dating back to 1993. Mr. Holcombe
    maintains that he is being charged for any and all violations
    occurring during the period from 1993 to 1999 as a "convenient
    target." Finally, Mr. Holcombe argues that he has been denied a fair
    hearing of the facts and the right to due process.

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III. **DISCUSSION**

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7.  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*"). In examining Mr.
    Holcombe'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]

8.  Section 333 of the Act and Section 97.101(d) of the Rules both
    prohibit willful or malicious interference to radio communications.
    Section 97.119 of the Rules prohibits the transmission of
    unidentified amateur radio communications. While Mr. Holcombe
    generally denies that any violations of these provisions occurred,
    his denial is contradicted by the observations of the FCC agent. On
    May 25, 1999, using MADF equipment, the investigating FCC agent
    observed a radio signal consisting of unidentified tones and remarks
    which would transmit on the MERA repeater input frequency
    immediately after another station began transmitting, resulting in
    harmful interference to communications already in progress on the
    MERA repeater. The agent positively identified the source of the
    interfering transmissions to be Mr. Holcombe's vehicle. On
    inspection of Mr. Holcombe's vehicle, the agent found an amateur
    radio transceiver which was capable of transmitting on the MERA
    repeater frequency pair and was in fact tuned to the MERA repeater
    frequency pair. We conclude that this evidence is sufficient to
    establish that Mr. Holcombe willfully and maliciously interfered
    with radio communications in willful violation of Section 333 of the
    Act and Section 97.101(d) of the Rules. As stated in the NAL, the
    interference was both willful and malicious because Mr. Holcombe
    timed his transmissions to commence just after other stations had
    begun transmitting. Mr. Holcombe also willfully violated Section
    97.119 of the Rules because he failed to transmit the required FCC
    identification during the transmissions.

9.  While Mr. Holcombe asserts that there was a passenger in his car on
    May 25, 1999, Dennis Rogers, who is willing to testify that the
    alleged violations did not occur, Mr. Holcombe failed to provide a
    sworn statement or statement under penalty of perjury from Mr.
    Rogers. Even so, the credibility of such a statement would be
    questionable in the face of the substantial evidence that the
    violations occurred. Furthermore, while Mr. Holcombe claims that Mr.
    Rogers told the FCC agent at the time that the alleged violations
    did not take place, the agent's contemporaneous written notes of his
    May 25, 1999, interview with Mr. Holcombe and Mr. Rogers do not
    reflect that Mr. Rogers made any such statement.[^8] Thus, there is
    no evidence in the record to support Mr. Holcombe's claim that the
    violations did not occur.

10. Moreover, contrary to Mr. Holcombe's assertions, he is not being
    held responsible for violations dating back to 1993. The reference
    in the NAL to prior interference complaints was background
    information intended to show the basis for the investigation that
    led to issuance of the NAL. The NAL only cited Mr. Holcombe for the
    violations personally observed and documented by the FCC agent.

11. Finally, we reject Mr. Holcombe's argument that he has been denied a
    fair hearing of the facts and the right to due process. Mr. Holcombe
    is not entitled to a hearing as a matter of right because Section
    503(b)(3)(A) of the Act, 47 U.S.C. § 503(b)(3)(A), explicitly states
    that such hearings may be held "*\[a\]t the discretion of the
    Commission*." (emphasis added). In lieu of holding a hearing, the
    Commission may proceed as it did in the instant case, using the NAL
    procedures set forth in Section 503(b)(4) of the Act, 47 U.S.C. §
    503(b)(4). *See also* 47 C.F.R. § 1.80(e). These procedures do not
    deprive Mr. Holcombe of his right to due process because any
    forfeiture issued in accordance with these procedures is ultimately
    subject to a trial *de novo* in federal district court pursuant to
    Section 504(a) of the Act, 47 U.S.C. § 504(a), should Mr. Holcombe
    not pay prior to such time.

12. We have examined Mr. Holcombe's response to the NAL pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement*. As a result of our review, we conclude that Mr. Holcombe
    has failed to justify cancellation or reduction of the proposed
    forfeiture. Therefore, we affirm the forfeiture of eight thousand
    dollars (\$8,000).

####  IV. ORDERING CLAUSES

13. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^9] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission's Rules,[^10] Paul E. Holcombe, IS LIABLE FOR A MONETARY
    FORFEITURE in the amount of eight thousand dollars (\$8,000) for
    willful and malicious interference to radio communications in
    violation of Section 333 of the Act and Section 97.101(d) of the
    Rules and for transmitting unidentified amateur radio communications
    in violation of Section 97.119 of the Rules.

14. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's Rules[^11] 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 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 the NAL/Acct. No. X3254-002. 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.[^13]

15. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
    sent by Certified Mail Return Receipt Requested to Paul E. Holcombe
    at 15103 Mira Vista Drive, Houston, Texas 77083-4208.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 333.

[^2]: 47 C.F.R. §§ 97.101(d) and 97.119.

[^3]: *Notice of Apparent Liability*, NAL Acct. No. X3254-002 (released
    January 13, 2000).

[^4]: ^?^ The NOV erroneously cited Section 97.101(c) of the Rules
    instead of Section 97.101(d), but accurately stated the language of
    Section 97.101(d). The NAL correctly cited Section 97.101(d).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: The agent's written notes of his May 25, 1999, interview with Mr.
    Holcombe and Mr. Rogers indicate that the following exchange
    occurred. The agent asked Mr. Holcombe if he was responsible for the
    interfering transmissions the agent had just observed emanating from
    his vehicle, and Mr. Holcombe responded that he did not recall
    operating at that time. The agent then asked Mr. Rogers if he had
    been operating the radio at that time. In response, Mr. Rogers
    denied operating the radio, and Mr. Holcombe also stated that Mr.
    Rogers had not been operating the radio.

[^9]: 47 U.S.C. § 503(b).

[^10]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^11]: 47 C.F.R. § 1.80.

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.