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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File Number: EB-09-NY-0300
Mark Nierman and )
NAL/Acct. No.: 201032380005
Kakadu Productions, Inc. )
FRN: 0019 3494 71
Brooklyn, New York )
Adopted: June 10, 2010 Released: June 14, 2010
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand five hundred dollars ($4,500) jointly and
severally to Mark Nierman ("Nierman") and Kakadu Productions, Inc.
("Kakadu"), for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended ("Act"), by operating an
unlicensed radio station on the frequency 99.9 MHz in Brooklyn, New
2. On October 12 and 13, 2009, in response to several complaints from
licensed broadcasters, an agent from the Enforcement Bureau's New York
Office ("New York Office"), using a mobile direction-finding vehicle,
monitored the frequency 99.9 MHz in Brooklyn, New York. The agent
determined that the source of the broadcast transmissions on 99.9 MHz
was a radio station operating from an apartment building located at
2814 West 8th Street, Brooklyn, New York 11224. The agent observed an
FM broadcast antenna on top of a water tank on the roof of the
apartment building located at 2814 West 8th Street. The agent
subsequently took field strength measurements and determined that the
signals being broadcast exceeded the limits for operation under Part
15 of the Commission's Rules ("Rules") and therefore required a
license. The agent searched Commission databases and found no evidence
of a Commission authorization for this operation on 99.9 MHz in
Brooklyn, New York.
3. After taking the field strength measurements on October 13, 2009, the
agent went to the office of the building management company, Luna Park
Housing Corporation ("Luna Park"). The agent conducted an interview
with the Director of Operations ("Director") regarding the unlicensed
radio station operating at 2814 West 8th Street. The Director stated
that he was aware of the antenna on the roof of the apartment building
(Building #3) at 2814 West 8th Street and that a five-year lease had
been executed between Luna Park and Mark Nierman of Kakadu allowing a
radio station to operate in the bulkhead room of Building #3 beginning
May 30, 2009 for $6,000 per year. The agent then returned to the
apartment building located at 2814 West 8th Street and conducted an
inspection of the FM broadcast antenna on top of the water tank on the
roof with the building superintendant. The agent observed coaxial
cable connecting the FM broadcast antenna to radio station equipment
located inside the bulkhead room on the roof. The agent also observed
that the radio station equipment was active and recorded information
about the equipment. The building superintendent then shut down all
the equipment at the agent's request.
4. On October 16, 2009, the New York Office issued a Notice of Unlicensed
Operation ("NOUO") to Kakadu. The NOUO warned Kakadu that operation of
the unlicensed radio station on 99.9 MHz violated Section 301 of the
Act and outlined the potential penalties for such a violation,
including seizure of the equipment, fines and imprisonment. The NOUO
also directed Kakadu to terminate operation of the unlicensed station
immediately and provided Kakadu ten days to reply. On October 26,
2009, Kakadu submitted a reply to the NOUO stating that it had ceased
operating the unlicensed radio station at 2814 West 8th Street and
that it would comply with FCC directives in any future radio
5. On January 8, 2010, the New York Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of ten thousand dollars
($10,000) to Nierman and Kakadu jointly and severally for apparently
willfully and repeatedly operating an unlicensed radio station in
violation of Section 301 of the Act. Nierman and Kakadu jointly
submitted a response to the NAL on February 9, 2010. In their
response, Nierman and Kakadu do not dispute the violations identified
in the NAL but request cancellation of the proposed forfeiture based
on their inability to pay.
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy Statement").
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. As discussed below, we find that a reduction of
the forfeiture amount from $10,000 to $4,500 based on Nierman's and
Kakadu's inability to pay is appropriate.
7. 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 granted under the provisions of the Act.
Nierman and Kakadu do not dispute that they operated a radio station
without a license on October 12, 2009, and October 13, 2009, on 99.9
MHz in Brooklyn, New York. We therefore find that Nierman and Kakadu
willfully and repeatedly operated an unlicensed station in violation
of Section 301 of the Act.
8. Nierman and Kakadu claim that the proposed forfeiture amount poses a
financial hardship and request that we cancel the forfeiture. In
support of their claim of financial hardship, Nierman and Kakadu
submitted three years of individual and corporate tax returns. With
regard to an individual's or entity's inability to pay, the Commission
has determined that, in general, gross revenues are the best indicator
of an ability to pay a forfeiture. We have reviewed Nierman's and
Kakadu's documentation and conclude that a reduction of the forfeiture
to $4,500 is warranted based on Nierman's and Kakadu's inability to
IV. ORDERING CLAUSES
9. 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, Mark Nierman and Kakadu
Productions, Inc. ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY
FORFEITURE in the amount of four thousand five hundred dollars
($4,500) for violations of Section 301 of the Act.
10. 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Nierman and Kakadu also shall send electronic notification on the date
said payment is made to NER-Response@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Mark Nierman and
Kakadu Productions, Inc. at their addresses of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
47 U.S.C. S: 301.
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
15.239. Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed Part 15
Mark Nierman is the sole shareholder of Kakadu Productions, Inc.
The New York Office also issued to Luna Park a NOUO on October 16, 2009
and a Notice of Apparent Liability for Forfeiture on January 8, 2010. See
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032380004
(Enf. Bur., New York Office, January 8, 2010).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032380005
(Enf. Bur., New York Office, January 8, 2010).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 153(33).
See e.g., Local Long Distance, Inc., 16 FCC Rcd 24385 (2000) (forfeiture
not deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd
8640 (2002) (forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross revenues).
47 U.S.C. S:S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-1054
Federal Communications Commission DA 10-1054