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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-334
Assondieu Fortune ) NAL/Acct. No.200332700007
4073 Coconut Circle North )
Naples, Florida ) FRN 0007879570
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 18, 2002
By the Enforcement Bureau, Tampa Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Assondieu Fortune apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').1 Specifically,
we find Assondieu Fortune apparently liable for the operation of
an FM broadcast station on the frequency 105.9 MHz without
2. On July 2, 2002, the FCC Enforcement Bureau's Tampa
Field Office (``Tampa Office'') received a complaint alleging
that a pirate radio station was being operated from a residence
located at 4073 Coconut Circle North in Naples, Florida. The
Collier County, Florida Appraisal District lists the owner of the
property at 4073 Coconut Circle North, Naples, Florida, to be
Assondieu and Marie M. Fortune.
3. On July 16, 2002, agents from the Tampa Office
investigated the complaint and, using direction-finding
techniques, determined that a radio broadcast station on
frequency 105.9 MHz was being operated from a residence located
at 4073 Coconut Circle North in Naples, Florida. A two-bay FM
broadcast-type antenna was mounted on a tower at the residence.
Based on field strength measurements taken by the agents of the
station's signal, a Commission authorization was required to
operate the station.2 The agents inspected the station and
interviewed the operator on duty. The property owner, Assondieu
Fortune, was not present during the inspection but he met later
with the agents for an interview. Mr. Fortune stated that the
station had operated continuously from his residence for at least
the past three months. Mr. Fortune stated that his wife Marie
operated the station during the morning and afternoon shows, and
that he himself also operated the station.
4. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license. On July 16, 2002, Assondieu Fortune operated radio
transmitting equipment on the frequency 105.9 MHz without benefit
of the required Commission authorization. In addition, based on
his own admission and a citizen complaint, Assondieu Fortune had
been operating the unlicensed station for at least three months
prior to that date.
5. Based on the evidence before us, we find that on July
16, 2002, and for at least three months prior to this date,
Assondieu Fortune repeatedly3 and willfully4 violated Section 301
of the Act by operating radio transmission apparatus without a
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for operating a radio station without a
Commission authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act, which
include 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.6 Considering the
entire record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Assondieu Fortune is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for willful and repeated violation of Section 301 the
Act by operating a radio station without Commission
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Assondieu Fortune SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. Payment of the forfeiture 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 should note the
NAL/Acct. No. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.9
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Assondieu Fortune, 4073 Coconut Circle North, Naples, Florida
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Field Office, Enforcement Bureau
1 47 U.S.C. § 301.
2 See 47 C.F.R. § 15.239(b).
3 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `repeated,' when used with reference to the
commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.''
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[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....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.