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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-534
Timothy J. Massett ) NAL/Acct. No.200332700012
2753 Downing Street )
Jacksonville, Florida ) FRN 0007965379
Adopted: May 20, 2004 Released: May 24, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand
dollars ($1,000) to Timothy J. Massett for willful
violation of Section 301 of the Communications Act of
1934, as amended (``Act'').1 The noted violations
involve Mr. Massett's operation of an FM broadcast
station on the frequency 91.5 MHz without a Commission
2. On December 11, 2002, the Commission's Tampa, Florida,
Field Office (``Tampa Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Mr.
Massett for a forfeiture in the amount of ten thousand
dollars ($10,000).2 Mr. Massett responded to the NAL on
January 23, 2003.3
3. On September 11, 2002, agents from the Tampa Office
operating an FCC direction-finding vehicle in the
Jacksonville, Florida, area, investigated an
unidentified radio station broadcasting on frequency
91.5 MHz. The agents determined, the basis of
direction-finding techniques, that the source of the
unidentified signal on 91.5 MHz was a building located
at 406 Chelsea Street in Jacksonville, Florida. The
agents determined on the basis of field strength
measurements that a Commission authorization was
required to operate that station.4 The agents
inspected the radio station located at 406 Chelsea
Street on the same day. Mr. Massett, who is the lessee
of the building, accompanied the agents during the
inspection. Mr. Massett showed the agents an FM
broadcast transmitter and the associated audio equipment
and then deactivated the transmitter. When the agents
asked Mr. Massett whether he had a license authorizing
operation of the radio station, he responded that he did
not. Mr. Massett admitted that he participated in the
operation of the station by resetting the station's CD
player when the music stopped just prior to the agents'
4. On December 11, 2002, the Tampa Office issued the
subject NAL to Mr. Massett for willfully violating
Section 301 of the Act. In his response, Mr. Massett
requests cancellation of the proposed monetary
forfeiture. He asserts that he has ``banned those
responsible for the transmissions from ever repeating
their act at 406 Chelsea St.'' and that, although he was
``partially responsible'' for the operation of the
unlicensed station at 406 Chelsea Street, he did not own
the station's radio apparatus and the station's
operation was ``not entirely'' under his control. Mr.
Massett argues that the proposed monetary forfeiture
should be cancelled because of his ``low degree of
culpability''; that he should have received a warning
letter or citation before the issuance of the NAL; that
he has no history of prior offenses; and that he is
unable to pay the proposed forfeiture. To support his
inability to pay claim, Mr. Massett submitted copies of
his 2000 and 2001 federal income tax returns.
5. The proposed forfeiture amount in this case is being
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),5
Section 1.80 of the Rules,6 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). Section
503(b) of the Act requires that the Commission, in
examining Mr. Massett's response, take into account 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 such other matters as justice may require.7
6. Section 301 of the Act prohibits unauthorized radio
operation. Although Mr. Massett may not be the
principal operator of the unlicensed radio station
located at 406 Chelsea Street, Jacksonville, Florida, he
is the lessee of 406 Chelsea Street and participated in
the station's operation on September 11, 2002. We
conclude that Mr. Massett willfully8 violated Section
301 of the Act.
7. Mr. Massett contends that the proposed forfeiture
should be cancelled because of his ``low degree of
culpability.'' Mr. Massett cites James N. Dispoto, 15
FCC Rcd 10171 (Enf. Bur. 2000) in support of his
position. We do not agree that Mr. Massett's degree of
culpability is ``low.'' Mr. Massett permitted the
operation of an unauthorized radio station on his leased
premises and participated in the operation of the
station. He, therefore, bears significant
responsibility for the station's operation. In the
Dispoto case, the Enforcement Bureau imposed a
forfeiture on James N. Dispoto for unlicensed operation
from his parents' residence after the cancellation of a
NAL issued to Mr. Dispoto's parents for the same
operation. While the NAL issued to Mr. and Mrs. Dispoto
was cancelled, the cancellation was not based on their
``low degree of culpability'' for the violation. 9
Therefore, we do not believe that cancellation of the
forfeiture against `Mr. and Mrs. Dispoto supports
cancellation of the subject forfeiture. We conclude
that the proposed forfeiture should not be cancelled or
reduced because of Mr. Massett's ``low degree of
8. The Enforcement Bureau is authorized to issue NALs
without first issuing citations to persons, such as Mr.
Massett, who engage in activities for which a Commission
license is required. See Section 503(b)(5) of the Act
and Section 1.80(d) of the Rules.10
9. No mitigation is warranted on the basis of Mr.
Massett's correction of the violation. As the
Commission stated in Seawest Yacht Brokers, 9 FCC Rcd
6099, 6099 (1994), ``corrective action taken to come
into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior
forfeitures or violations.''11
10. Mr. Massett claims a history of overall compliance with
the Commission's Rules.12 However, in light of the fact
that Mr. Massett is not a Commission licensee, we do not
believe he has any history with the Commission upon
which a history of overall compliance cancellation can
11. Mr. Massett contends that payment of the proposed
forfeiture amount of $10,000 would be a financial
hardship. In support of this contention, Mr. Massett
submits copies of his federal income tax returns.14 The
Commission has determined that, in general, gross
revenues are the best indicator of ability to pay a
forfeiture.15 Upon review of this financial
documentation, we conclude that the forfeiture amount
should be reduced to $1,000. 16
12. We have examined Mr. Massett's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As a
result of our review, we conclude that Mr. Massett
willfully violated Section 301 of the Act and we find
that, while there is no basis for cancellation of the
proposed monetary forfeiture, a reduction to $1,000 is
warranted on the basis of financial hardship.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,17 Mr. Massett IS LIABLE FOR A
MONETARY FORFEITURE in the amount of one thousand
dollars ($1,000) for willfully violating Section 301 of
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.18 Payment may be
made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission,
to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200332700012 and FRN 0007965379.
Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.19
15. IT IS FURTHER ORDERED THAT a copy of this Order shall
be sent by regular mail and Certified Mail Return
Receipt Requested to Timothy J. Massett, 2753 Downing
Street, Jacksonville, Florida 32205.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700012 (Enf. Bur., Tampa Office, released December 11,
3 We are construing Mr. Massett's filing, which is entitled
``Petition to Reconsider Forfeiture,'' as a response to the NAL
per 47 C.F.R. § 1.80(f)(3).
4 See 47 C.F.R. § 15.239(b).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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.,
9 The Order canceling the NAL issued to Mr. and Mrs. James
Dispoto made no determination regarding their degree of
culpability for the violation. Mr. and Mrs. James Dispoto,
NAL/Acct. No. 815TP0005 (Compl. and Info. Bur., Tampa Office,
released December 9, 1998). The Tampa Office, at the time of
issuance of the NAL to Mr. and Mrs. Dispoto, believed that their
son, James N. Dispoto, was a minor and therefore could not be
held individually liable for a forfeiture. The cancellation and
reissuance to James N. Dispoto resulted from receipt of
information from Mr. and Mrs. Dispoto that James N. Dispoto was
an adult, not a minor, and the subsequent determination that he
could, therefore, be held individually liable for the
10 47 U.S. C. § 503(b)(5) and 47 C.F.R. § 1.80(d).
11 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
12 Mr. Massett cites the following cases as support for
cancellation of the proposed monetary forfeiture based on his
lack of a history of prior offenses: Letter to Michael A.
Porter, NAL/Acct. No. 915TP0002 (Compl. & Info. Bur., issued
March 19, 1999); Jeffrey Alan Pettrey, 16 FCC Rcd 22088 (Enf.
Bur. 2001); and Networx Corporation, 17 FCC Rcd 10572 (Enf. Bur.
2002). None of the cited cases involves a cancellation of a
forfeiture based on a history of overall compliance assertion.
Further, the case at hand is factually dissimilar to the cited
cases, in which the cancellations resulted, respectively, from
prior enforcement action having been taken for unlicensed
operation; inability to pay; and a substantive determination that
the record did not support issuance of the monetary forfeiture.
13 See Odino Joseph, 18 FCC Rcd 16522, 16524 (Enf. Bur. 2003).
14 Additionally Mr. Massett cites to Philius Nicolas, 17 FCC
Rcd 23779 (Enf. Bur. 2002), arguing that his proposed forfeiture
should be cancelled because his alleged unlicensed operation
occurred only once whereas Philius Nicolas operated without a
license on multiple occasions. We do not agree. The number of
instances of unlicensed operation is immaterial, because the
reduction in both this case, as indicated above, and in Philius
Nicolas was based solely on the inability to pay an amount larger
15 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
16 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.