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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File Number: EB-09-NY-0318
Vicot Chery NAL/Acct. No: 201132380002
Spring Valley, New York FRN: 0019471259
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 21, 2010 Released: October 22, 2010
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Vicot Chery ("Chery") apparently willfully and repeatedly
violated section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
90.5 MHz in Spring Valley, New York. We conclude, pursuant to section
503(b) of the Act, that Chery is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
2. On October 26, 28, and 29, 2009, in response to a complaint, agents
from the Enforcement Bureau's New York Office ("New York Office")
monitored the frequency 90.5 MHz in Spring Valley, New York. On each
of those days, the agents observed a radio signal on 90.5 MHz and used
direction-finding techniques to locate the source of the transmissions
to 301 Roosevelt Avenue in Spring Valley, New York. The agents also
took field strength measurements on each of the three days and
determined that the signal being broadcast exceeded the limits for
operation under Part 15 of the Commission's rules ("Rules") and
therefore required a license. A review of the Commission's records
revealed that there was no FCC authorization to operate a radio
station on 90.5 MHz at this location in Spring Valley, New York.
3. After completing the field strength measurements on October 29, 2009,
the agents entered 301 Roosevelt Avenue where two businesses were
located - P.C. Taxi Services, LLC ("P.C. Taxi") and P.C. Auto Repair,
Inc. ("P.C. Auto"). The agents proceeded to the offices of P.C. Taxi
and spoke to the dispatcher regarding the unauthorized transmissions.
The dispatcher said she would contact Chery, who she identified as the
owner of P.C. Taxi. Subsequently, Chery arrived at 301 Roosevelt
Avenue and the agents asked him about the unauthorized transmissions
and asked to inspect the station. In response, Chery led the agents to
an adjacent room at the P.C. Taxi location where the agents observed a
radio station in operation. Next, Chery led the agents to the roof
where the FM broadcast antenna for the station was located. Finally,
Chery led the agents to the upstairs attic where the station's
transmitter was located behind a stack of car tires and hidden from
plain view. Chery told the agents that he was allowing a friend to use
the space to operate the station. At the agents' request, Chery turned
off the transmitter and the operation ceased. He also agreed to remove
4. On November 4, 2009, the New York Office issued a Notice of Unlicensed
Operation ("NOUO"), to Chery for unlicensed operation on 90.5 MHz in
Spring Valley, New York. The New York Office received a reply to the
NOUO on behalf of Chery. Notwithstanding Chery's actions during the
inspection, in the NOUO Response, Chery's attorney asserts that Chery
"had no knowledge of the events which you have charged him with." The
attorney goes on to state that during the two months prior to the
agents' inspection, Chery had allowed an unspecified person to use the
space in his businesses where the radio station was located. To date,
Chery has not provided the agents his friend's name.
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions of
any license, or willfully or repeatedly fails to comply with any of the
provisions of the Act or of any rule, regulation, or order issued by the
Commission thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly. The term
"repeated" means the commission or omission of such act more than once or
for more than one day.
6. 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. For the
purposes of section 301, the word "operate" has been interpreted to mean
"the general conduct or management of a station as a whole, as distinct
from the specific technical work involved in the actual transmission of
signals." In other words, the use of the word "operate" in section 301 of
the Act captures not just the "actual, mechanical manipulation of radio
apparatus" but also operation of a radio station generally. To determine
whether an individual is involved in the general conduct or management of
the station, we can consider whether such individual exercises control
over the station, which the Commission has defined to include ". . . any
means of actual working control over the operation of the [station] in
whatever manner exercised." The agents determined that, on October 26, 28,
and 29, 2009, an unlicensed radio station was operating on 90.5 MHz from
301 Roosevelt Avenue in Spring Valley, New York within a building leased
by Chery for the operation of his businesses. As discussed more fully
below, we find that Chery is apparently liable for operating the
unlicensed radio station on 90.5 MHz because he demonstrated control over
the management of the station as a whole.
7. Together, the facts show that Chery had control of the station and was
involved in the general conduct or management of the station. When asked
about the unauthorized transmissions during the inspection on October 29,
2009, Chery immediately led the agents to a locked room at the P.C. Taxi
location, which Chery owns and operates. Chery unlocked the room and the
agents observed the radio station in operation. Chery also showed the
agents the station's transmitter and was able to turn it off when asked to
do so by the agents. Further, Chery took the agents to the roof of the
building where the station's antenna was located and agreed to remove the
antenna from the roof top. The fact that someone else also may have been
involved in the station's operation does not make Chery any less of a
participant in the station's operation. We have previously held that,
because section 301 of the Act provides that "no person shall use or
operate" radio transmission equipment, liability for unlicensed operation
may be assigned to any individual taking part in the operation of the
unlicensed station, regardless of who else may be responsible for the
operation. Based on the evidence before us, we find that Chery apparently
willfully and repeatedly violated section 301 of the Act by operating a
radio station on 90.5 MHz in Spring Valley, New York without the requisite
8. Pursuant to the Forfeiture Policy Statement and section 1.80 of the
Rules, the base forfeiture amount for operation without an instrument of
authorization is $10,000. In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in section
503(b)(2)(E) of the Act, which include the nature, circumstances, extent,
and gravity of the violations, 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. Applying the Forfeiture Policy
Statement, section 1.80, and the statutory factors to the instant case, we
conclude that Vicot Chery is apparently liable for a forfeiture in the
amount of $10,000.
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 of the Rules, Vicot Chery is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000)
for violations of section 301 of the Act.
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Vicot Chery SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. Payment of the forfeiture must be made by credit card, 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[s] 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. Vicot
Chery shall also send electronic notification to NER-Response@fcc.gov on
the date said payment is made.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to sections
1.80(f)(3) and 1.16 of the Rules. The written statement must be mailed to
Federal Communications Commission, Enforcement Bureau, Northeast Region,
New York Office, 201 Varick Street, Suite 1151, New York, NY 10014, and
must include the NAL/Acct. No. referenced in the caption. The statement
shall also be emailed to NER-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim 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
("GAAP"); or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status. Any claim
of inability to pay must specifically identify the basis for the claim by
reference to the financial documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Vicot Chery at his address of record and
to counsel for Vicot Chery at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
A listener of non-commercial educational FM station WFUV, located at
Fordham University in Bronx, New York, filed a complaint alleging
interference from an illegal broadcast station operating on 90.5 MHz in
Spring Valley, New York.
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 micro volts per meter ("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 transmitter.
Agents determined that Vicot Chery is the owner and operator of P.C. Taxi
and P.C. Auto Repair.
During the inspection at the P.C. Taxi location on October 29, 2009,
agents also determined that P.C. Taxi was operating the base station for
its private land mobile station (call sign WPSY573) from an unauthorized
location. The New York Office issued a Notice of Violation to P.C. Taxi.
See P.C. Taxi Services, LLC, Notice of Violation, V201032380001, released
November 5, 2009.
See Letter from Mitchell P. Schecter, Counsel for Vicot Chery, to Gary
Barker, New York Office, Northeast Region, Enforcement Bureau, dated
November 12, 2009 ("NOUO Response").
Section 312(f)(1) of the Act, 47 U.S.C. S: 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', when used with reference to the
commission or omission of any act, 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 e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(Comparing the use of the words "operate" and "operation" in sections 301,
307, and 318 of the Act and concluding that the word "operate" as used in
section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id. See also 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
47 U.S.C. S: 301.
Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11 (Enf. Bur.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
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Federal Communications Commission DA 10-2030
Federal Communications Commission DA 10-2030