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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                   )     File Number EB-02-TP-557
                                                            )
Jhony Desinor                      )    NAL/Acct. No.200332700008
                                  )
                                  )             FRN 0007-8795-62




                        FORFEITURE ORDER 

Adopted:   July 27, 2004                Released:  July 29, 2004

By the Chief, Enforcement Bureau:


I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
        monetary  forfeiture  in  the  amount  of  ten   thousand 
        dollars ($10,000) to Jhony Desinor for willful  violation 
        of Section  301 of  the Communications  Act of  1934,  as 
        amended (``Act'').1   The  noted violations  involve  Mr. 
        Desinor's operation  of an  FM broadcast  station on  the 
        frequency 105.9 MHz without Commission authorization.

     2.   On November 18, 2002, the Commission's Tampa,  Florida, 
        Field  Office  (``Tampa  Office'')  issued  a  Notice  of 
        Apparent  Liability  for  Forfeiture  (``NAL'')  to   Mr. 
        Desinor for a  forfeiture in the  amount of ten  thousand 
        dollars ($10,000).2  Mr. Desinor responded to the NAL  on 
        December 18, 2002.

II.  BACKGROUND

     3.   On July 2, 2002, the Tampa Office received a  complaint 
        alleging that  an unauthorized  radio station  was  being 
        operated from a residence located at 4073 Coconut  Circle 
        North in Naples, Florida.   Agents from the Tampa  Office 
        investigated the complaint on July 16, 2002.  The  agents 
        observed an FM broadcast  station operating on  frequency 
        105.9  MHz  and,   using  direction-finding   techniques, 
        traced the  station's  signal to  an antenna  located  at 
        4073 Coconut Circle North,  Naples, Florida.  The  agents 
        determined on the  basis of  field strength  measurements 
        that a Commission authorization  was required to  operate 
        that station.3  Later  on the same  day the agents  again 
        observed an FM broadcast  station operating on  frequency 
        105.9  MHz  and,   using  direction-finding   techniques, 
        traced its signal to the antenna located at 4073  Coconut 
        Circle  North,  Naples,  Florida.   Shortly  after  these 
        observations  the  agents   inspected  the  station   and 
        observed Mr. Desinor  talking into  the microphone.   The 
        agents asked  Mr. Desinor  whether he  had a  license  to 
        operate the radio  station; Mr. Desinor  replied that  he 
        did not have  a license.4   At the  agents' request,  Mr. 
        Desinor deactivated the station's transmitter.

     4.   On November 18, 2002, the Commission's Tampa,  Florida, 
        Field  Office  (``Tampa  Office'')  issued  a  Notice  of 
        Apparent  Liability  for  Forfeiture  (``NAL'')  to   Mr. 
        Desinor for a  forfeiture in the  amount of ten  thousand 
        dollars ($10,000).  In his  response, filed December  18, 
        2002, Mr. Desinor  admits that  he was a  disc jockey  at 
        the  station  located  at  4073  Coconut  Circle   North, 
        Naples, Florida, and  provides a  roster indicating  that 
        he was  one  of the  station's operators.   However,  Mr. 
        Desinor  asserts  that  he   ``was  not  the  owner   and 
        operator'' of  that  station; that  he ``never  knew  the 
        radio  was  functioning  illegally'';  that  he  did  not 
        receive any financial benefit  from the operation of  the 
        station; that the ``owner  and operator'' of the  station 
        is  ``free of  charge'';  and  that  he  cannot  pay  the 
        proposed forfeiture.

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. Desinor'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:   ``No  person  shall   use  or  operate   any 
        apparatus   for   the    transmission   of   energy    or 
        communications or signals  by radio  . .  . except  under 
        and in accordance  with this  Act and with  a license  in 
        that behalf granted under the provisions of this  Act.''8  
        Mr. Desinor does not deny  that the radio station he  was 
        operating did not have a license.  Mr. Desinor  contends, 
        however, that he was invited to host a show at the  radio 
        station and  that he  functioned  as one  of a  group  of 
        volunteers who were disk jockeys and hosts.  Mr.  Desinor 
        further  argues  that  he  is  not  responsible  for  the 
        illegal operation  of  the  station because  he  was  not 
        ``the owner and  operator'' of that  station and did  not 
        receive any revenues from  the operation of the  station.  
        Regardless  of  whether  Mr.  Desinor  is  the  station's 
        ``owner,'' it  is undisputed  that, at  the time  of  the 
        inspection, he was the station's actual operator and  was 
        in charge of  the station.  Mr.  Desinor, therefore,  was 
        responsible for  its operation  in violation  of  Section 
        301  of  the   Act  at  the   time  of  the   inspection.  
        Accordingly, we find  that Mr.  Desinor violated  Section 
        301 of the Act.

     7.   Mr. Desinor's claim  that he did  not know the  station 
        was operating illegally  indicates that he  may not  have 
        intended to violate Section 301  of the Act but does  not 
        negate the willfulness of the violation.9   Mr.  Desinor, 
        however, stated to the FCC agents that he did not have  a 
        license to  operate the  station.  Further,  Mr.  Desinor 
        does not deny  that he  was the operator  of the  station 
        when the  FCC  inspected  it.  As  the  operator  of  the 
        unlicensed station and the person in charge, Mr.  Desinor 
        acted  consciously  and  deliberately.   We,   therefore, 
        conclude that Mr. Desinor willfully violated Section  301 
        of the Act. 10

     8.   Finally, Mr. Desinor  contends that he  cannot pay  the 
        proposed  forfeiture   amount   but  has   submitted   no 
        financial  documentation  to  support  this  claim.    As 
        stated in  the  NAL,  the Commission  will  not  consider 
        reducing  or canceling  a  forfeiture  on  the  basis  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;  or  (3)  some 
        other   reliable   and   objective   documentation   that 
        accurately reflects  the petitioner's  current  financial 
        status.

     9.   We have  examined Mr.  Desinor'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.  Desinor 
        willfully violated Sections  301 of the  Act and find  no 
        basis  for cancellation  or  reduction  of  the  proposed 
        $10,000 monetary forfeiture.

     IV.  ORDERING CLAUSES

     10.  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,11 Mr. Desinor  IS LIABLE FOR  A 
        MONETARY  FORFEITURE  in  the  amount  of  ten   thousand 
        dollars ($10,000) for willfully violating Section 301  of 
        the Act.

     11.  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.12  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.  200332700008 and FRN  0007-8795-
        62.  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. 20554.13

     12.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
        be sent by First Class and Certified Mail Return  Receipt 
        Requested  to  Jhony  Desinor  at  1306  Wildwood   Lakes 
        Boulevard, Apt. 6, Nalpes, FL 34104.

                              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. 
200332700008 (Enf.  Bur.,  Tampa Office,  released  November  18, 
2002).    

3 See 47 C.F.R.  15.239(b).

4 The Commission's  license records indicated  that there was  no 
license covering the  operation of  the station  located at  4073 
Coconut Circle North, Naples, Florida.

5 47 U.S.C.  503(b).

6 47 C.F.R.  1.80.

7 47 U.S.C.  503(b)(2)(D).

8 47 U.S.C.  301.

9 See  Southern  California  Broadcasting Co.,  6  FCC  Rcd  4387 
(1991).

10 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.  

11 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

12 47 U.S.C.  504(a).

13 See 47 C.F.R.  1.1914.