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                           Before the
                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



                        FORFEITURE ORDER 

Adopted:   May 20, 2004                 Released:   May 24, 2004

By the Chief, Enforcement Bureau:

                         I.   INTRODUCTION

     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 
        authorization.

     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

                          II.  BACKGROUND

     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' 
        inspection.

     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.

                         III.   DISCUSSION


     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 
        culpability.''

     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 
        be based.13

     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 
        the Act.

     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, 
2002).    

  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., 
supra.  

  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 
forfeiture.

  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 
than $1,000.

  15  See PJB Communications  of Virginia, Inc., 7 FCC Rcd  2088, 
2089 (1992). 

  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.