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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number: EB-09-NY-0300
Mark Nierman and
) NAL/Acct. No.: 201032380005
Kakadu Productions, Inc.
) FRN: 0019 3494 71
Brooklyn, New York
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 Mark Nierman and Kakadu Productions, Inc. ("Kakadu"), apparently
willfully and repeatedly violated Section 301 of the Communications
Act of 1934, as amended ("Act"), by operating 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 Mark Nierman and Kakadu apparently are jointly
and severally 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, Brooklyn, New York 11224. 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, New York.
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"), in reference to 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 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, Notices of Unlicensed
Operation ("NOUO") to Kakadu and Luna Park at their addresses of
record. The NOUOs warned Kakadu and Luna Park that operation of the
unlicensed radio station on 99.9 MHz violated Section 301 of the Act
and outlined the potential penalties for such a violation, including
seizure of the equipment, fines and imprisonment. The NOUOs also
directed Kakadu and Luna Park to terminate operation of the unlicensed
station immediately and provided Kakadu and Luna Park ten days to
5. On October 26, 2009, the New York Office received a reply to the NOUO
sent to Kakadu. Kakadu stated in their response that they had ceased
operating the unlicensed radio station at 2814 West 8th Street and
that they would comply with FCC directives in any future radio
6. On October 29, 2009, the New York Office received a reply to the NOUO
sent to Luna Park. Luna Park confirmed in their response that they
were notified by the Commission agent of the unlicensed radio station
operating at 2814 West 8th Street and that the transmitter had been
shut down by building superintendant during the agent's inspection of
the roof. Luna Park further reported in its response that Mark Nierman
of Kakadu later picked up the transmitter from the bulkhead room.
7. On November 5, 2009, a Commission agent researched the LexisNexis Law
Enforcement Solutions database, and found the same current address
(2520 Kings Hwy, Brooklyn, NY 11229) and same phone number
(718-338-1013) listed for both Mark Nierman and Kakadu.
8. 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.
9. 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. According to a lease agreement signed on behalf of
Kakadu by Mark Nierman, Kakadu leased space on the roof of building #3
at 2814 West 8th Street for the purpose of operating a radio station.
In addition, in Kakadu's response to the October 16, 2009 NOUO, Kakadu
admitted that the operation of the radio station at 2814 West 8th
Street was unlicensed. In this regard, we find Mark Nierman and Kakadu
jointly responsible for the operation of an unlicensed radio station
on 99.9 MHz at 2814 West 8th Street in Brooklyn, New York. We find
that Mark Nierman's and Kakadu's actions amounted to willful and
repeated violations of Section 301 of the Act.
10. Based on the evidence before us, we find that Mark Nierman and Kakadu
apparently willfully and repeatedly violated Section 301 of the Act by
operating an unlicensed radio transmitter on the frequency 99.9 MHz in
Brooklyn, New York.
11. 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
Mark Nierman and Kakadu are apparently jointly and severally liable
for a $10,000 forfeiture.
IV. ORDERING CLAUSES
12. 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, Mark Nierman and Kakadu
Productions, Inc. are hereby NOTIFIED of their APPARENT JOINT AND
SEVERAL LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violations of Section 301 of the Act.
13. 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, Mark Nierman and Kakadu
Productions, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
14. 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, Mark Nierman and/or Kakadu
Productions, Inc. will send electronic notification on the date said
payment is made to NER-Response@fcc.gov.
15. 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.
16. 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.
17. 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 Mark Nierman and Kakadu Productions,
Inc. at their addresses 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).
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