Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-TP-029
Wilner Simon )
110 Triangle Street ) NAL/Acct. No. 200432700016
Port Charlotte, Florida )
) FRN 0010511020
Adopted: August 9, 2004
Released: August 11, 2004
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 Wilner Simon for willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Mr. Simon's
operation of a radio station without Commission
2. On February 20, 2003, agents from the FCC
Enforcement Bureau's Tampa Field Office (``Tampa Office'')
observed an FM radio station operating on the frequency
107.5 MHz in the Port Charlotte, Florida area. Commission
records showed no license issued for a station on this
frequency in the Port Charlotte area. Using direction-
finding techniques, the agents determined the source of the
signal to be a residence located at 110 Triangle Street,
Port Charlotte, Florida. The agents took field strength
measurements of the station's signal and determined that the
station required a license to operate. The agents inspected
the radio station and interviewed the operator, Wilner
Simon. The agents orally warned Mr. Simon about the
unlicensed radio operation. Mr. Simon voluntarily
relinquished the unlicensed radio equipment to the agents.
3. On January 8, 2004, two agents from the Tampa
Office observed a signal on the frequency 87.6 MHz in the
Port Charlotte area. Using direction-finding techniques,
the agents determined the source of the signal to be a
residence at 110 Triangle Street, Port Charlotte, Florida.
The agents could detect the signal at a distance of more
than three miles from the source. Commission records showed
no license issued for a station on this frequency in the
Port Charlotte area.
4. On January 13, 2004, using direction-finding
techniques, the two agents again detected a signal on the
frequency 87.6 MHz. Using direction-finding techniques, the
agents determined the source of the signal to be a residence
located at 110 Triangle Street, Port Charlotte, Florida. A
vertical dipole antenna was mounted on a tower attached to
the residence. No audio or modulation could be detected on
the signal's main carrier, but the agents observed that the
signal broadcast a subcarrier, known also as Subsidiary
Communications Authority, which is a separate audio or data
channel transmitted along with the main audio signal over a
broadcast station signal. Based on the field strength
measurements taken by the agents, the station required a
Commission authorization to operate.
5. Later on January 13, 2004, the agents attempted an
inspection of the radio station broadcasting on 87.6 MHz at
110 Triangle Street, Port Charlotte, Florida. No one
answered the agents' knocks on the door of the residence.
However, the station broadcasting from this location ceased
broadcasting while the agents knocked on the door.
6. On January 15, 2004, the agents interviewed Mr.
Simon, the owner of the residence at 110 Triangle Street,
Port Charlotte, Florida. Mr. Simon admitted to operating a
broadcast station utilizing a subcarrier transmission from
his residence on January 13, 2004 without an FCC license.
Mr. Simon stated that his broadcasts were providing a
service to the community. Mr. Simon also stated that he did
not intend to cease broadcasting despite the agents'
warnings of possible civil and criminal enforcement
sanctions for unlicensed radio operation.
7. On April 20, 2004, the Tampa Office issued a
Notice of Apparent Liability for Forfeiture to Mr. Simon in
the amount of ten thousand dollars ($10,000) for the
apparent willful and repeated violation of Section 301 of
the Act.2 In response, Mr. Simon alleges he did not intend
to violate the law, that he tried to obtain permits and/or
licenses for his station, and that there are no alternatives
to breaking the law because such alternatives are too costly
and time-consuming. Moreover, Mr. Simon alleges that the
Commission's licensing rules violate the First Amendment and
that the Commission seized equipment in Mr. Simon's home
pursuant to an illegal and unlawful search and seizure.
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,3
Section 1.80 of the Commission's Rules (``Rules''),4 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) (``Forfeiture Policy Statement''). In
examining Mr. Simon'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 other such
matters as justice may require.5
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. Agents explained the requirements of Section 301
and the consequences for violating that provision to Mr.
Simon on February 20, 2003. Such warnings, however, did not
deter Mr. Simon from broadcasting without a license. Using
direction-finding techniques, agents determined that Mr.
Simon again operated radio transmitting equipment without
the required authorization on January 8 and 13, 2004.
During the January 15, 2004 interview, Mr. Simon admitted
that he operated a broadcast station without a license and
stated he would continue to do so. Mr. Simon's response to
the NAL does not dispute any of these facts. We find that
Mr. Simon willfully6 and repeatedly7 violated Section 301
of the Act by operating radio transmitting equipment without
the required authorization from the Commission on January 8
and 13, 2004.
10. Although Mr. Simon did not deny he violated
Section 301 of the Act, his response challenges the
constitutionality of the Act and the Commission's actions.
Mr. Simon argues the Commission's licensing requirements and
processes violate the First Amendment, because they limit
who may use the radio airwaves. Mr. Simon also argues the
Commission unlawfully searched his home and seized his
equipment, without a warrant and without his consent. We
disagree with all of Mr. Simon's assertions. The U.S.
Supreme Court has repeatedly held that there is no
constitutional right to use radio facilities without a
license.8 In addition, the Commission's licensing processes
are irrelevant to whether Mr. Simon operated radio
transmitting equipment without the required authorization.
Finally, on February 20, 2003 and January 15, 2004, Mr.
Simon voluntarily agreed to the agents' request to inspect
the radio station located on his premises. Therefore, a
search warrant was not required. Moreover, Mr. Simon
voluntarily relinquished the FM transmitting equipment he
was using and signed a receipt, which stated he was the sole
owner of the equipment and that he freely transferred title
to such equipment to the Commission on February 20, 2003.
Thus, the Commission never seized any of Mr. Simon's
11. Finally, Mr. Simon requests that, if he is found
to have violated the Act, the proposed forfeiture be reduced
to $50.00, because he exercised good faith to comply with
the rules. As evidence of his good faith, he points out
that he tried to obtain a low power FM (``LPFM'') license.
Although Mr. Simon may have applied for a LPFM license, he
also knowingly transmitted without a license. Such actions
do not constitute good faith efforts to comply with the
Rules and do not warrant a reduction in the forfeiture
12. We have examined Mr. Simon's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Mr. Simon willfully and repeatedly
violated Section 301 of the Act and find no basis for
cancellation or reduction of the $10,000 forfeiture proposed
for this violation.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,10 Wilner Simon IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand dollars ($10,000)
for willfully and repeatedly violating Section 301 of the
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.11 Payment shall 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 note NAL/Acct. No.
200432700016, and 0010511020. Requests for full payment
under an installment plan should be sent to: Chief, Revenue
and Receivables Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Wilner Simon, 18265 Poston Ave, Port
Charlotte, Florida 33948 and Pine Scott Price, 126 E.
Olympia Ave., #405, Punta Gorda, Florida 33950.
David H. Solomon
Chief, Enforcement Bureau
147 U.S.C. § 301.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432700016 (Enf. Bur., Tampa Office, April 20, 2004)
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
6Section 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
7As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
8See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388
(1969); National Broadcasting Co. v. United States, 319
U.S. 190, 227 (1943); and United States v. Dunifer, 997
F.Supp. 1235 (N.D. Calif. 1998), aff'd on other grounds,
219 F.3d 1004 (9th Cir. 2000).
9We note that Mr. Simon's response alleged the Commission
twice seized his equipment. This statement is factually
incorrect. Mr. Simon voluntarily relinquished unlicensed
radio equipment on February 20, 2003. The Commission has
not received or seized any other equipment from Mr. Simon.
1047 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1147 U.S.C. § 504(a).
12See 47 C.F.R. § 1.1914.