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                                   Before the

                       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
   Bureau:

   I. INTRODUCTION

    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
       dollars ($10,000).

   II. BACKGROUND

    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
       reply.

    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
       operations.

    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.

   III. DISCUSSION

    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

   District Director

   New York Office

   Northeast Region

   Enforcement Bureau

   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
   transmitter.

   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.
   S:1.80.

   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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

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   Federal Communications Commission