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                         Before the
              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
                                 )


                      FORFEITURE ORDER

Adopted:              August             9,             2004                                                                                        
Released:  August 11, 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 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 
authorization.

II.   BACKGROUND 

     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.  

III.        DISCUSSION

     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 
equipment.9

     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 
amount.  

     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 
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.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, 
D.C. 20554.12 

     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.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              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) 
(``NAL'').

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 
(1991).   

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.