In the Matter of ) EB DOCKET NO. 01-61
)
LESLIE D. BREWER ) Acct. No.
200132080023
)
Licensee of Amateur Radio Station and )
General Class Operator License KC4HAZ )
)
Licensee of Station KAE1170 in the )
General Mobile Radio Service )

ORDER OF REVOCATION AND OF FORFEITURE

Adopted: June 21, 2001 Released: June
26, 2001

By the Chief, Enforcement Bureau:

I. INTRODUCTION

1. By this Order, we revoke the above-captioned Amateur
Radio and General Mobile Radio Service (``GMRS'') station
licenses held by Leslie D. Brewer, and impose upon him a
forfeiture in the amount of $11,000 for willfully and
repeatedly violating Section 301 of the Communications Act
of 1934, as amended. We conclude, based upon evidence of
Mr. Brewer's ``pirate radio'' and other unlawful activities,
that he lacks the basic character qualifications to be and
remain a Commission licensee.

II. BACKGROUND

2. By Order to Show Cause, Notice of Order of Suspension,
Notice of Opportunity for Hearing, and Notice of Apparent
Liability for a Forfeiture, FCC 01-74, released March 5,
2001 (``OSC''), the Commission designated this case for
hearing. The OSC, at ¶ 17, specified the following issues:

(a) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated Section 301
of the Communications Act of 1934, as amended, by
operating unlicensed (i.e., ``pirate'') broadcast
facilities in 1996, 1997, 1999 and/or 2000, and,
if so, the effect thereof on his basic
qualifications to be and remain a Commission
licensee.

(b) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated Section 301
of the Communications Act of 1934, as amended, by
operating an unlicensed Studio-to-Transmitter Link
in 1999 and/or 2000, and, if so, the effect
thereof on his basic qualifications to be and
remain a Commission licensee.

(c) To determine whether Leslie D. Brewer
willfully and/or repeatedly violated Sections
2.803(a)(1) and/or 15.201(b) of the Commission's
rules by marketing and/or selling an unauthorized
radio frequency device or devices, and, if so, the
effect thereof on his basic qualifications to be
and remain a Commission licensee.

(d) To determine whether, in light of the evidence
adduced pursuant to the foregoing issues, Leslie
D. Brewer is qualified to be and remain a
Commission licensee.

(e) To determine whether the captioned Amateur
radio station license and/or General Mobile Radio
Service license held by Leslie D. Brewer should be
revoked.

3. The OSC, at ¶ 19, also ordered the Presiding Judge,
notwithstanding the resolution of the foregoing issues, to
determine whether an Order of Forfeiture should be issued
against Mr. Brewer for having willfully and/or repeatedly
violated Section 301 of the Communications Act of 1934, as
amended,1 on March 11, 2000. The OSC set the maximum
forfeiture amount at $11,000.

4. The OSC, at ¶ 21, ordered Mr. Brewer, pursuant to
Section 1.91(c) of the Commission's rules,2 to file a
written notice of appearance in order to avail himself of
the opportunity to be heard. The OSC explained that if Mr.
Brewer failed to file a timely written notice of appearance,
his right to a hearing on the matter of his captioned
station licenses would be deemed waived, and the proceeding
thereafter would be conducted in accordance with Section
1.92 of the Commission's rules.

5. By Memorandum Opinion and Order, FCC 01M-11, released
May 4, 2001, the Presiding Judge determined that Mr. Brewer
had received a copy of the OSC, but failed to file a written
(or any other) notice of appearance seeking to avail himself
of the opportunity to be heard. Accordingly, the Presiding
Judge concluded that the hearing was waived. The Presiding
Judge terminated the proceeding and certified the case to
the Commission for disposition in accordance with Section
1.92(c) of the Commission's rules. 3

III. FINDINGS OF FACT

6. The facts contained in the OSC are uncontested. Based
on that information and other Commission records, we make
the following specific findings.

7. Mr. Brewer is the licensee for Amateur radio station
and General class operator license KC4HAZ. He also is the
licensee of Station KAE1170 in the General Mobile Radio
Service (``GMRS''). Mr. Brewer owns an electronics shop in
Tampa, Florida, d/b/a L.D. Brewer 2-Way Radio. L.D. Brewer
2-Way Radio sells and assembles radio equipment.

8. In response to an anonymous inquiry about a pirate FM
station broadcasting on 102.1 MHz in the Tampa area,
Commission personnel monitored the station on January 11,
1996, and traced the unlicensed transmissions to Mr.
Brewer's residence at 6122 Liberty Avenue, Tampa, Florida.
On January 12, 1996, Commission personnel warned Mr. Brewer
that, except when operating certain low power devices, it is
a violation of Section 301 of the Communications Act4 to
transmit on the FM band without a license.5 In a letter
directed to Mr. Brewer on January 17, 1996, Commission staff
repeated its warning about unlicensed operations. On
January 19, 1996, Mr. Brewer responded in writing and stated
that ``[a]ny further operation of [the] station will be
within the guidelines for low-power operation, set out in
part 15.'' 6

9. Thereafter, on February 16, 1996, Commission personnel
conducted a follow-up investigation of Mr. Brewer's
transmissions. The monitoring revealed that Mr. Brewer was
again operating his unlicensed FM station. As a result, on
April 3, 1996, Commission staff issued a Notice of Apparent
Liability to Mr. Brewer in the amount of $1,000 for
broadcasting without a license, in apparent willful
violation of Section 301 of the Act.7 In response, Mr.
Brewer challenged, among other things, the accuracy of field
strength measurements taken of his transmissions and the
competency of Commission engineers who had conducted the
measurements. On June 19, 1996, Commission staff released a
Forfeiture Order. The Forfeiture Order rejected Mr.
Brewer's claims, concluded that Mr. Brewer had engaged in
the unauthorized operation of an FM broadcast station in
violation of Section 301 of the Act, and directed Mr. Brewer
to forfeit the sum of $1,000. The Commission subsequently
denied Mr. Brewer's application for review of the Forfeiture
Order. 8

10. Further monitoring on October 25, 1996, January 31,
1997, May 15, 1997, and October 14, 1997, revealed that Mr.
Brewer continued his pirate operations throughout 1996 and
into 1997. During this period, the Commission received
written complaints of interference from Paxson Tampa License
Limited Partnership (``Paxson''), licensee of Station
WHPT(FM), 102.5 MHz, Sarasota, Florida. On June 19, 1997,
the Chief, Audio Services Division, Mass Media Bureau,
issued a letter denying a May 10, 1996, request by Mr.
Brewer for Special Temporary Authority to operate an FM
broadcast station on 102.1 MHz in the Tampa area, and
returning as unacceptable a November 8, 1996, application by
Mr. Brewer for a construction permit for a new Class A
noncommercial educational broadcast station on 102.1 MHz in
the Tampa area.9 Notwithstanding these actions, Mr. Brewer
continued to operate his FM station without authority. As a
consequence, on November 19, 1997, Commission personnel,
with the assistance of Deputies from the U.S. Marshals
Service, served and executed an in rem seizure warrant upon
Mr. Brewer and confiscated his FM transmission equipment.10

11. For two years following the in rem seizure of his FM
transmitting equipment, Mr. Brewer apparently refrained from
engaging in further pirate operations. During this time, on
September 14, 1998, Mr. Brewer filed an application for an
experimental FM station with the Commission's Office of
Engineering and Technology.11 The staff dismissed the
application on September 25, 1998, and returned it to Mr.
Brewer because it had been filed on an incorrect form.

12. On November 8, 1999, Mr. Brewer again requested Special
Temporary Authority to operate an FM broadcast station on
102.1 MHz in the Tampa area, either as part of the ``regular
broadcast service'' or as an ``experimental broadcast
service.'' While this request was pending,12 and on the
second anniversary of the in rem seizure (November 19,
1999), Mr. Brewer resumed his pirate broadcasts on 102.1 MHz
in willful and repeated violation of Section 301 of the Act.

13. Based on monitoring conducted on November 19 and 23,
1999, Commission personnel confirmed that the source of
unlicensed transmissions on 102.1 MHz was a warehouse
located in a commercial shopping mall at the Shady Oaks
Plaza, 14920 N. Florida Avenue, Tampa, Florida. A tenant
list provided by Ross Realty Group, the owners of Shady Oaks
Plaza, indicated that the warehouse was leased to an
individual by the name of Karen Walsh. Ross Realty Group
provided copies of cancelled checks showing that Mr. Brewer
had paid for the warehouse space leased by Karen Walsh, and
from which the unlicensed broadcasts were emanating.

14. Subsequently, on December 2, 1999, Commission personnel
again monitored the unlicensed transmissions from the same
warehouse. On that same date, Commission personnel
confirmed that Mr. Brewer was employing an unlicensed
studio-to-transmitter link (``STL'') on 950.0925 MHz to send
audio programming and/or control signals from his residence
at 6122 Liberty Avenue, Tampa, Florida, to the warehouse, in
apparent violation of Section 301 of the Act. Further
monitoring by Commission personnel on December 3, 10, and
15, 1999, confirmed continuing operation of both the
unlicensed FM station on 102.1 MHz from the Shady Oaks Plaza
warehouse and the unlicensed STL on 950.0925 MHz from Mr.
Brewer's Liberty Avenue residence.13

15. Commission staff continued monitoring transmissions on
frequency 102.1 MHz during the early part of the year 2000.
On March 11, 2000, Commission staff traced transmissions on
frequency 950.095 MHz radiating from Mr. Brewer's residence
located at 6122 East Liberty Avenue, Tampa, Florida.
Commission staff then monitored transmissions on frequency
102.1 MHz and heard programming identical to the programming
being broadcast on frequency 950.095 MHz. Commission staff
determined that the transmissions on frequency 102.1 MHz
were radiating from a tower located in the Shady Oaks Plaza
warehouse on Florida Avenue in Tampa. Measurements taken at
approximately 250 meters from the warehouse tower by
Commission staff indicated a field strength of 102,127
microvolts per meter, which exceeded the radiation emission
limit prescribed by Section 15.239 of the Commission's
rules.14 Mr. Brewer did not have authority to transmit at
that power level or to operate an STL facility.

16. In addition to operating pirate FM and STL facilities,
Mr. Brewer also has engaged in marketing unauthorized FM
broadcast transmitting equipment, in willful violation of
Sections 2.803(a)(1) and 15.201(b) of the Commission's
rules, 47 C.F.R. §§ 2.803(a)(1) and 15.201(b).15
Specifically, in early 1997, it came to the Commission's
attention that Mr. Brewer, through his business, L.D. Brewer
2-Way Radio, was marketing unauthorized radio frequency
devices. As a result, on July 18, 1997, Commission staff
directed a warning letter to Mr. Brewer to refrain from such
activities. Mr. Brewer responded on July 21, 1997, denying
he was engaged in any unlawful actions.

17. Thereafter, on August 6, 1998, an agent from the
Commission's Tampa field office, posing as a member of the
general public, sent an e-mail to L.D. Brewer 2-Way Radio
requesting information about purchasing a 20-watt
transmitter that would operate in the FM band. Mr. Brewer
responded via e-mail with a price and instructions for
purchasing such equipment. On August 25, 1998, the Tampa
field office submitted a money order in the amount of
$560.00 for the equipment to L.D. Brewer 2-Way Radio.
Subsequently, on September 28, 1998, the Tampa field office
received a fully assembled 20-watt FM broadcast transmitter
from L.D. Brewer 2-Way Radio. There was no indication that
the transmitter was authorized by the Commission, and no FCC
identifier number was affixed to the equipment. On August
5, 1999, Commission staff issued a Notice of Apparent
Liability against Mr. Brewer in the amount of $10,000 for
selling an unauthorized radio frequency device, in apparent
violation of Sections 2.803(a)(1) and 15.201(b) of the
Commission's rules. The Chief, Enforcement Bureau,
subsequently rejected the arguments in Mr. Brewer's written
response and issued a Forfeiture Order in the same amount.16

IV. CONCLUSIONS OF LAW
·
18. Section 301 of the Act provides in pertinent part that
no person shall operate any apparatus for the transmission
of communications by radio from one place in any state to
another place in the same state without a license from this
Commission.17 The requirement for a license in order to
broadcast has been upheld by the United States Supreme Court
as a proper exercise of the constitutional power of
Congress.18

19. The Commission's Broadcast Character Policy Statement19
provides that violations of the Communications Act or the
Commission's rules are matters which are predictive of
licensee behavior and directly relevant to the Commission's
regulatory activities. The Character Policy Statement may
be used as guidance for Amateur and other wireless radio
licensees.20

20. Based on the evidence before us, the issues specified
in the OSC are resolved adversely to Mr. Brewer. As early
as January 12, 1996, the Commission advised Mr. Brewer to
refrain from operating unlicensed broadcast facilities.
Notwithstanding that warning, Mr. Brewer continued to engage
in unlawful conduct. The record amply demonstrates that Mr.
Brewer willfully and repeatedly violated Section 301 of the
Act by operating unlicensed broadcast facilities in 1996,
1997, 1999 and 2000; that Mr. Brewer willfully and
repeatedly violated Section 301 of the Act by operating an
unlicensed Studio-to-Transmitter Link in 1999 and 2000; 21
and that Mr. Brewer willfully and repeatedly violated
Sections 2.803(a)(1) and 15.201(b) of the Commission's rules
by marketing and/or selling an unauthorized radio frequency
device or devices.

21. We further find, as a matter of law, that Mr. Brewer is
unqualified to be and remain a Commission licensee and that
the captioned Amateur Radio and GMRS licenses held by him
should be revoked. Mr. Brewer continues to display a
cavalier disregard toward his licensee obligations, as
prescribed by the Act and the Commission's rules,
notwithstanding clear and repeated notice that his behavior
was unlawful. Based on Mr. Brewer's flagrant and continuing
refusal to comply with the Act and Commission rules, we
conclude that Mr. Brewer cannot be relied upon to carry out
the responsibilities of a licensee and, hence, does not
possess the basic character qualifications to hold a
Commission authorization. Consequently, we will revoke Mr.
Brewer's Amateur Radio and GMRS station licenses. 22

22. As noted above at ¶ 3, the OSC (at ¶ 19) directed that,
notwithstanding the resolution of the specified issues, it
should be determined whether a forfeiture order should be
issued against Mr. Brewer in an amount not to exceed $11,000
for willfully and/or repeatedly violating Section 301 of the
Act on March 11, 2000. We conclude that a forfeiture order
should be issued against Mr. Brewer, and that it should be
for the maximum amount. The record evidence clearly shows
that Mr. Brewer engaged in unlicensed operations of both an
FM broadcast facility and an unlicensed STL on March 11,
2000, in willful and repeated violation of Section 301 of
the Act.

23. Sections 503(b) of the Act and 1.80 of the Commission's
rules state that any person who willfully or repeatedly
fails to comply with the Act or the Commission's rules shall
be liable for a forfeiture penalty. For purposes of Section
503(b), the term ``willful'' means that the violator knew
that he was taking the action in question, irrespective of
any intent to violate the Commission's rules.23 In
assessing a forfeiture, we 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 such other
matters as justice may require.24

24. After considering all the facts and circumstances,
including Mr. Brewer's long history of misconduct before
this agency, we believe that a forfeiture in the maximum
amount of $11,000 is appropriate. Operating unlicensed
radio facilities in deliberate and brazen defiance of our
rules cannot and will not be tolerated.

V. ORDERING CLAUSES

25. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 312 of
the Communications Act of 1934, as amended,25 and Sections
1.92(d) and 0.111(a)(14) of the Commission's rules,26 that
the captioned Amateur Radio and GMRS station licenses held
by Leslie D. Brewer ARE REVOKED, effective on the 40th day
after release of this Order, unless Mr. Brewer files a
petition for reconsideration within 30 days of release of
this Order, in which case the effective date will be
suspended pending further order of the Commission.

26. IT IS FURTHER ORDERED, pursuant to Section 503(b)(3)(A)
of the Communications Act of 1934, as amended, and Section
1.80(f)(4) of the Commission's rules,27 that Leslie D.
Brewer SHALL FORFEIT to the United States the sum of eleven
thousand dollars ($11,000) for willfully violating Section
301 of the Communications Act of 1934, as amended.

27. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 within 30 days of the release
of this Forfeiture Order.28 If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to 47 U.S.C.
§§ 503(b)(3)(B) and 504(a).

28. IT IS FURTHER ORDERED that a copy of this Order shall
be sent, via Certified Mail - Return Receipt Requested, to
Leslie D. Brewer, 6122 Liberty Avenue, Tampa, Florida 33617.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon
Chief, Enforcement Bureau
_________________________

1 47 U.S.C. § 301.

2 47 C.F.R. § 1.91(c).

3 47 C.F.R. § 1.92(c). Section 1.92(c) provides that when
a hearing is deemed waived, the Presiding Administrative Law
Judge shall promptly certify the case to the Commission.
Section 1.92(d) of the Commission's rules further provides
that the Commission will thereafter, on the basis of the
information before it, determine whether an order of
revocation should issue. Pursuant to Section 0.111(a)(14),
the Enforcement Bureau has delegated authority to ``issue or
draft appropriate orders after a hearing has been terminated
by an Administrative Law Judge on the basis of waiver.'' 47
C.F.R. § 0.111(a)(14). See also 47 C.F.R. § 0.311.
4 47 U.S.C. § 301. Section 301 of the Act provides in
pertinent part that no person shall operate any apparatus
for the transmission of communications by radio from one
place in any state to another place in the same state
without a license from this Commission.

5 The only pertinent exception to the blanket prohibition
on unlicensed operation is found in Section 15.239(b) of the
Commission's rules, 47 C.F.R. § 15.239(b). This rule
Section permits unlicensed emissions between 88 MHz and 108
MHz, provided the field strength of such emissions does not
exceed 250 microvolts/meter at 3 meters. At all relevant
times, Mr. Brewer's FM emissions have exceeded these
parameters.

6 Letter, dated January 19, 1996, from L. D. Brewer to
Gerardo Daubar, Federal Communications Commission, Tampa,
Florida.
7
8 See Leslie D. Brewer, 12 FCC Rcd 13,490 (1997).

9 The June 19, 1997, letter denied the STA request because
it failed to satisfy the requirements of Section 15.7(a) of
the Commission's rules, 47 C.F.R. § 15.7(a), pursuant to
which the STA request was filed. The June 19, 1997, letter
returned Mr. Brewer's application as unacceptable for
tender, pursuant to Section 73.203(a) of the Commission's
rules, 47 C.F.R. § 73.203(a), because it proposed operation
of a new FM facility on a channel and in a location not
included in FM Table of Allotments. An application for
review of the June 19, 1997, actions is pending.

10 The U.S. District Court for the Middle District of
Florida, Tampa Division, on February 22, 2000, upheld the
validity of the in rem seizure.

11 File No. 6271-EX-PL-1998.

12 The Commission staff ultimately denied the STA request
on June 30, 2000, on multiple grounds.

13
14 47 C.F.R. § 15.239. See n. 5.

15 These rule sections collectively prohibit the marketing
and/or sale of unauthorized transmission equipment.

16 On February 22, 2001, the Deputy Clerk for the United
States District Court, Middle District of Florida, Tampa
Division, entered a default against Mr. Brewer in connection
with a consolidated action brought by the Department of
Justice on behalf of the FCC to collect the $10,000
forfeiture and the earlier $1,000 forfeiture (see para. 7,
above) issued against Mr. Brewer. See United States v.
Leslie D. Brewer, Entry of Default, Case No. 8:01-cv-59-T-
27MAP, February 22, 2001.

17 As noted above at n. 5, Section 15.239(b) of the
Commission's rules permits unlicensed transmissions in the
FM broadcast band, provided the transmissions are below
certain specified field strength levels. The record before
us indicates that Mr. Brewer's transmissions on the FM band
have, at all relevant times, exceeded these levels and,
thus, required a license.

18 National Broadcasting Co. v. United States, 319 U.S. 190,
227 (1943); see also United States v. Dunifer, 997 F. Supp.
1235, 1241 (N.D. Cal. 1998).

19 Policy Regarding Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179 (1986), on reconsideration, 1 FCC
Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179
(D.C. Cir., June 11, 1987). See also Policy Regarding
Character Qualifications in Broadcast Licensing, 5 FCC Rcd
3252 (1990), on reconsideration, 6 FCC Rcd 3448 (1991),
modified, 7 FCC Rcd 6564 (1992).

20 See, e.g., Herbert L. Schoenbohm, 13 FCC Rcd 15,026
(1998) (denying renewal of amateur license based on felony
conviction and lack of candor), recon. denied 13 FCC Rcd
23774 (1998), appeal dismissed, 204 F.3d 234 (D.C. Cir.
2000), cert. denied, 121 S.Ct. 405 (2000).

21 The evidence establishes that Mr. Brewer has operated
unlicensed broadcast and/or STL facilities on at least the
following dates: January 11, 1996; February 16, 1996;
October 25, 1996; January 31, 1997; May 15, 1997; October
14, 1997; November 19 and 23, 1997; December 3, 10, and 15,
1997; and March 11, 2000.

22 The OCS, at ¶ 16, ordered the suspension of Mr.
Brewer's Amateur Radio operator license for the remainder of
its term, effective 15 days after Mr. Brewer's receipt of
the OCS, unless, within that time, Mr. Brewer requested in
writing a hearing to challenge the suspension. The record
reveals that at no time did Mr. Brewer request a hearing on
the matter of the suspension of his Amateur Radio operator
license. Accordingly, the suspension of his Amateur Radio
operator license has already become effective by operation
of the OCS and the matter of such suspension need not be
considered in the instant Order.

23 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999) recon.
denied, 14 FCC Rcd 20147 (1999) petition for review pending
sub nom. Grid Radio and Jerry Szoka v. FCC, No. 99-1463
(D.C. Cir. November 17, 1999); Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).

24 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Guidelines'').

25 47 U.S.C. § 312.

26 47 C.F.R. §§ 1.92(d), 0.111(a)(14).

27 47 U.S.C. § 503(b)(3)(A), 47 C.F.R. § 1.80(f)(4).

28 47 C.F.R. § 1.80. Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
must reference the Acct. No. identified 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. See 47 C.F.R. § 1.1914.

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