******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re ) ) KEITH PERRY ) Leander, Texas ) CIB Docket No. 98-46 ) NAL Acct. No. 915HF0002 Order to Show Cause Why a ) Cease and Desist Order Should Not be Issued) ) CEASE AND DESIST ORDER AND FORFEITURE ORDER Adopted: December 9, 1998 Released: December 23, 1998 By the Commission: I. This proceeding began when the Commission released its Order to Show Cause and Notice of Opportunity for Hearing, FCC 98-62, April 6, 1998, ("Show Cause Order"). Therein, we ordered Keith Perry ("Perry") to show cause why a Cease and Desist Order should not be issued with regard to his unauthorized operation of a radio station on 88.5 and 95.9 MHz in Leander, Texas. In addition, the Show Cause Order included a notice of opportunity for hearing pursuant to Section 1.80(g) of the Commission's Rules. 47 C.F.R.  1.80(g). That aspect of the hearing was to determine whether Perry should be assessed a forfeiture for his apparent willful violation of Section 301 of the Communications Act of 1934, as amended ("Act"), 47 U.S.C.  301. 2. By Order, FCC 98M-60, released May 26, 1998, Administrative Law Judge Arthur I. Steinberg terminated the hearing proceeding because Perry failed to file the requisite notice of appearance, which was due to be filed on or before April 28, 1998. In so doing, the Presiding Judge observed that Perry had mailed a document entitled "Certified Demand for FCC Jurisdiction," dated April 13, 1998, to the Chief, Compliance and Information Bureau ("CIB"). The Presiding Judge found that the Certified Demand did not constitute the written notice of appearance required by Section l.91(c) of the Commission's Rules, 47 C.F.R.  1.91(c), because the document was not addressed to the Commission or the Presiding Judge, and was not formally or officially filed. Second, and more significantly, the Certified Demand neither states nor implies that Mr. Perry "will appear at the hearing and present evidence on the matters specified in the [Show Cause Order]. On the contrary, the certified demand clearly implies that Mr. Perry does not intend to appear at a hearing unless he is first persuaded that the Commission has jurisdiction over him." Order, at n. l. The Presiding Judge also noted that Perry failed to appear and participate in a prehearing conference held in this proceeding on May 20, 1998. Pursuant to Section 1.92(c) of the Commission's Rules, the Presiding Judge certified the case to the Commission. 47 C.F.R.  1.92(c). 3. On May 1, 1998, a registered mailing from Perry, containing an undated document entitled "Respondent's Response and Challenge to the Jurisdiction of the Commission," was delivered to the Commission. In that document, Perry again challenged the Commission's authority and jurisdiction over him. In addition, Perry states that he "welcome[s] the opportunity to present [his] circumstances" before the Commission, including, but not limited to an expansion of the issues to encompass, among other things, the constitutionality of the FCC's policies and procedures, and criminal and civil violations by the FCC. He also "motions" for local and additional Federal Register publication of a public notice of the Show Cause Order in order to permit his listeners and programmers to represent their different and unique interests in broadcasting on his station. In addition, Perry "makes motion that venue for the hearings... be moved from Washington, D.C., and situated at the nearest federal facility located within the Austin, Texas geographic area." 4. Perry's May 1, 1998, submission was neither formally nor officially filed and was not before the Presiding Judge at the prehearing conference. Accordingly, the failure to consider that document was not error. Moreover, had it been considered, certification of this case to the Commission still would have been proper. In this regard, even a cursory review of that document reveals that it suffers from the same deficiencies as Perry's April 13, 1998, submission. Specifically, it neither states nor implies that Mr. Perry will appear at the hearing and present evidence on the matters specified in the [Show Cause Order] unless and until he is first persuaded that the Commission has jurisdiction over him. The Commission's jurisdiction over Perry is clearly set forth in the Show Cause Order, and no further explanation is necessary as a condition precedent to the filing of a notice of appearance relative to the scheduled hearing. Accordingly, we find that the fact that Perry's May 1, 1998, submission was not considered at the prehearing conference was not a material omission and is, at worst, harmless error. Thus, it is not necessary to further address Perry's other untimely or defective requests contained within his May 1, 1998, submission. 5. The Commission's records, as detailed in the Show Cause Order, indicate that Perry has operated an unauthorized radio station on 88.9 and 95.9 MHz in Leander, Texas, since at least February, 1997. Notwithstanding both written and oral warnings from agents of this Commission that his operations were illegal, Perry has continued to broadcast in violation of Section 301 of the Act. 47 U.S.C.  301. 6. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 312(b) of the Act, 47 U.S.C.  312(b), Keith Perry IS ORDERED TO CEASE AND DESIST from violating Section 301 of the Act. 47 U.S.C.  301. 7. IT IS FURTHER ORDERED that, pursuant to Section 503(b), 47 U.S.C.  503(b) of the Act, Keith Perry FORFEIT to the United States of America the sum of eleven thousand dollars ($11,000) for willful violation of Section 301 of the Act. 47 U.S.C. 301. Payment of the forfeiture shall be made, in U.S. dollars, by check, credit card or money order payable to the Federal Communications Commission. The remittance should be marked "NAL Acct. No. 915HF0002" mailed to the following address Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 8. IT IS FURTHER ORDERED that the Office of Public Affairs, Reference Operations Division of the Commission send a copy of this Cease and Desist Order and Forfeiture Order by Certified Mail - Return Receipt Requested to: Keith Perry 607 Osage Drive Leander, Texas 78641 9. IT IS FURTHER ORDERED that this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary