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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-09-NY-0301
Luna Park Housing Corporation ) NAL/Acct. No.: 201032380004
Brooklyn, New York ) FRN: 0009 1764 96
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 8, 2010
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Luna Park Housing Corporation ("Luna Park"), apparently willfully
and repeatedly violated Section 301 of the Communications Act of 1934,
as amended ("Act"), by providing services and facilities incidental to
the operation of an unlicensed radio station on the frequency 99.9 MHz
in Brooklyn, New York. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Luna Park is
apparently liable for a forfeiture in the amount of ten thousand
2. On October 12 and 13, 2009, in response to several interference
complaints, a Commission agent, using a mobile direction-finding
vehicle, monitored the frequency 99.9 MHz in Brooklyn, New York. The
agent observed a radio station broadcasting on 99.9 MHz and determined
that the station was operating from an apartment building located at
2814 West 8th Street in Brooklyn, New York. The agent observed an FM
broadcast antenna on top of a water tank on the roof of the apartment
building located at 2814 West 8th Street. The agent subsequently took
field strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of the
Commission's Rules ("Rules") and therefore required a license. The
agent searched Commission databases and found no evidence of a
Commission authorization for this operation on 99.9 MHz in Brooklyn,
3. After taking the field strength measurements on October 13, 2009, a
Commission agent went to the office of the building management
company, Luna Park Housing Corporation ("Luna Park"), located at 2879
West 12th Street, Brooklyn, New York. The agent conducted an interview
with the Director of Operations ("Director") regarding the unlicensed
radio station operating on 99.9 MHz at 2814 West 8th Street. The
Director said that he was aware of the antenna on the roof of the
apartment building (Building #3) at 2814 West 8th Street and that a
five-year lease had been executed between Luna Park and Mark Nierman
of Kakadu Productions, Inc. ("Kakadu") allowing a radio station to
operate in the bulkhead room of Building #3 beginning May 30, 2009 for
$6,000 per year. The agent then conducted an inspection on the roof of
2814 West 8th Street with the building superintendant and observed the
FM broadcast antenna on top of the water tank and traced the coaxial
cable from the antenna to the bulkhead room on the roof. The radio
station equipment was located inside the bulkhead room and the agent
observed that the radio station equipment was active. The agent took
down information about the equipment and then requested that the
building superintendent shut down all the equipment, which he did.
4. On October 16, 2009, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") addressed to Luna Park at its address of record.
The NOUO warned Luna Park that operation of the unlicensed radio
station on 99.9 MHz or the provision of services or facilities
incidental to the operation of the unlicensed radio station on 99.9
MHz at 2814 West 8th Street in Brooklyn, New York violated Section 301
of the Act and outlined the potential penalties for such a violation,
including seizure of the equipment, fines and imprisonment. The NOUO
also directed Luna Park to terminate operation of the unlicensed
station immediately and provided Luna Park ten days to reply.
5. On October 29, 2009, the New York Office received a reply to the NOUO
issued to Luna Park. In its response, Luna Park confirmed that it was
notified by the Commission agent of the unlicensed radio station and
that the transmitter was shut down by the building superintendant
after the agent's inspection of the radio station equipment. Luna Park
also reported that Mark Nierman of Kakadu later retrieved the
transmitter from the roof of the building.
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
7. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license granted under the provisions of the Act.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on October 12, 2009, and October 13, 2009, an unlicensed radio
station was broadcasting on 99.9 MHz from 2814 West 8th Street in
Brooklyn, New York. Luna Park's Director of Operations reported that
Luna Park authorized Kakadu to operate a radio station from the
bulkhead room of Building #3 located at 2814 West 8th Street pursuant
to a five-year lease agreement beginning May 30, 2009 for the amount
of $6,000 per year. Accordingly, we find that Luna Park provided
services and facilities incidental to the transmission of
communications by radio occurring on 99.9 MHz at 2814 West 8th Street
in Brooklyn, New York. We have previously held that liability for
unlicensed operation may be assigned to any individual taking part in
the operation of the unlicensed station, regardless of who else may be
responsible for the operation, because Section 301 of the Act provides
that "no person shall use or operate" radio transmission equipment.
Taken together, we find that Luna Park's actions amounted to willful
and repeated violations of Section 301 of the Act.
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operation without an instrument of
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)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Luna Park is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Luna Park Housing
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 301 of the Act.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Luna Park Housing
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Luna Park Housing Corporation
will send electronic notification on the date said payment is made to
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014 and must include the
NAL/Acct. No. referenced in the caption.
13. 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 submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Luna Park Housing Corporation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
15.239. Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed Part 15
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under 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."
47 U.S.C. S: 153(33).
47 U.S.C. S: 301; See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793
(EB 2006); See also Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418
(EB 2005). The term "person" is defined in the Act to include "an
individual, partnership, association, joint stock company, trust, or
corporation." 47 U.S.C. S: 153(32).
We note that Luna Park had some indication that the station was not
licensed soon after it entered into the lease agreement with Kakadu on May
30, 2009. In a letter from Alla Kachan, Kakadu's attorney, to Luna Park,
dated June 12, 2009, Mr. Kachan stated that Kakadu is "in the process of
applying for a license and a permit under two separate provisions of an
emergency communications law" and that additionally it is "undertaking a
full power FM license application through the formal FCC licensing
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission