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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Michael S. Selvanto ) File Number EB-02-NY-288
9 Caldwell Place )
Elizabeth, New Jersey ) NAL/Acct. No. 200332380017
) FRN 0008-1141-75
Adopted: August 6, 2004 Released: August 10,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Mr. Michael S. Selvanto (``Mr. Selvanto'') for
willful violation of Section 301 of the Communications Act of
1934, as amended (``Act'').1 The noted violation involves Mr.
Selvanto's operation of a radio station without Commission
2. On February 18, 2003, the Commission's New York, New
York Field Office (``New York Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Mr. Selvanto for a
forfeiture in the amount of ten thousand dollars ($10,000).2 Mr.
Selvanto responded on April 7, 2003, to the NAL.
3. On November 26, 2002, in response to complaints of
November 19 and 26, 2002 regarding an unlicensed FM broadcast
station on 91.9 MHz in Elizabeth, New Jersey, agents from the
Commission's New York Office observed unauthorized FM radio
broadcasts in Elizabeth, New Jersey'' on the frequency 91.9 MHz.
Using electronic direction finding techniques, the agents
positively identified the source of transmissions to be an
antenna mounted on the roof of a building located at 9 Caldwell
Place, in Elizabeth, New Jersey. The agents determined through
field strength measurements that the station's field strength was
11,362 times greater than the permissible level for unlicensed
low power FM operation.3 Thus, this station required a license
to operate. Commission records showed no authorization for this
operation in Elizabeth, New Jersey.
4. Also on November 26, 2002, the agents, with Mr.
Selvanto's permission and in his presence, inspected the radio
studio and found a 500 watt FM broadcast transmitter in
operation. Mr. Selvanto admitted he was the person operating the
station. During the investigation, one of the agents issued and
hand delivered a Warning of Unlicensed Radio Operation letter
(``Warning Letter''), to Mr. Selvanto.
5. On November 27, 2002, the New York Office sent an
identical Warning Letter, by First Class and Certified Mail
Return Receipt Requested, to Mr. Selvanto for unlicensed
operation on the frequency 91.9 MHz. The letter was addressed to
Mr. Selvanto's business, The CFM Entertainment Center, at its
business address, 9 Caldwell Place, Elizabeth, New Jersey, 07201.
The Certified Mail Return Receipt Requested letter was returned
to the Commission unclaimed, the First Class letter was not
6. On February 18, 2003, the New York Office issued an NAL
for a $10,000 forfeiture to Mr. Michael S. Selvanto for operating
a radio station without Commission authorization in willful
violation of Section 301 of the Act. In his April 7, 2003,
response, Mr. Selvanto does not dispute the violation, but
requests the Commission take into account the equity factors in
his operation such as he was unaware his operation was over
power, the operation was not for personal monetary gain, but for
the community churches and businesses, he never received the
November 27, 2002 Warning Letter and immediately shut down the
operation upon notice of violation, and his inability to pay. He
submitted no documentation substantiating an inability to pay.
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,4 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Red 17087 (1997), recon. denied, 15 FCC Red 303 (1999)
``Policy Statement''). In examining Mr. Selvanto's response,
Section 503(b) of the Act requires that the Commission 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.5
8. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a license
in that behalf granted under the provisions of this Act.''6
Section 15.239 of the Commission Rules7 permits certain
unlicensed low powered radio operation, but Mr. Selvanto's
operation greatly exceeded the permissible power levels.
Accordingly, a license was needed for the station's operation.
Based on Mr. Selvanto's admissions and the agents' observations
during the inspection, we conclude that Mr. Selvanto willfully
violated Section 301 of the Act.8
9. Mr. Selvanto requests that we consider the
circumstances of the violation. In his response, Mr. Selvanto
does not dispute the violation, but in mitigation of the
forfeiture he claims he was unaware that he was transmitting
higher than the allowable power. We reject his argument. Mr.
Selvanto was operating with power in excess of that authorized
for low power. Accordingly, a license was required. Ignorance
of the rules is no excuse.9 He knew his equipment, its power
level and he chose to operate with it at that power level in
willful violation of Section 301 of the Act.
10. Next, Mr. Selvanto states that he intended to operate a
low power radio station for the benefit of local community
churches and businesses and not for personal monetary gain. The
fact that the station may perform useful service in the
community does not mitigate his violation.10 Moreover, Mr.
Selvanto could have performed his public service under the low
power unlicensed transmissions authorized by Section 15.239 of
the Rules, but he chose not to do so. Further, Mr. Selvanto
claims he did not receive the November 27, 2002 Warning Letter
and that he shut down immediately after being inspected by the
agents. The fact that he may not have received the November 27,
2002 Warning Letter is immaterial. He was informed of the
violation by the agent and he was hand served with an identical
Warning Letter during the November 26, 2002 inspection.
Additionally, it is well established that there is no obligation
on the Commission staff to issue a letter prior to issuance of an
NAL.11 As to his immediately shutting down the unauthorized
transmissions following notification of the violation, the
Commission has repeatedly stated that remedial actions taken to
correct a violation are expected and as such are not mitigating
factors warranting reduction of a forfeiture.12
11. Mr. Selvanto's request for waiver of the forfeiture
based on his inability to pay was not accompanied by his tax
returns from 1999 through 2001, or any other documentation as set
forth in paragraph 12 of the NAL.13 Any claim of inability to
pay must specifically identify the basis for the claim by
reference to the financial documentation submitted. Accordingly,
there is no basis to cancel or reduce the assessed forfeiture
amount due to a demonstrated inability to pay.
12. After careful and complete review of all relevant
factors, based on the above cited circumstances, we conclude that
Mr. Selvanto willfully violated Section 301 of the Act and find
no basis for mitigation.
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,14 Mr. Michael S. Selvanto IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willful violation of 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.15
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 must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Mr. Michael S. Selvanto, 9 Caldwell Place,
Elizabeth, New Jersey 07201.
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.
200332380017 (Enf. Bur., New York Office, released February 18,
3 Under Section 15.239 of the Commission's Rules, 47 C.F.R. §
15.239, the use of an intentional radiator in the 88-108 MHz band
is permitted only if the field strength of the transmissions does
not exceed 250 microvolts/meter at three meters.
4 47 U.S.C. § 503(b).
5 47 U.S.C. § 503(B)(2)(D).
6 47 U.S.C. § 301.
7 47. C.F.R. § 15.239
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., 6
FCC Rcd 4387 (1991).
9 Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991)
(ignorance of the law is not a mitigating circumstance) citing
Vernon Broadcasting, Inc., 60 RR 2d 1275, 1277 (19866) and Fay
Neel Eggleston, 19 FCC 2d 829 (1969)..
10 MRJ, Inc., DA-04-1298, (Enf. Bur. released May 12, 2004).
11 See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002);
Missouri RSA No.2 Partnership D.B.A. ALLTEL, 18 FCC Rcd 12653 at
12654 (Enf. Bur. 2003); and ARACELIS ORTIZ, 19 FCC Rcd 2632 at
2636 (Enf. Bur. 2004)
12 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd. 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc.42 FCC 2d 258, 259 (1973).
13 Mr. Selvanto was instructed in ¶ 12 of his NAL that ``The
Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless [he] 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 [his] current
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).