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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-09-MA-0089
Christopher M. Myers ) NAL/Acct. No: 201032600003
Lauderhill, Florida ) FRN: 0020022315
MEMORANDUM OPINION AND ORDER
Adopted: July 21, 2011 Released: July 21, 2011
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("MO&O"), issued pursuant to
section 405 of the Communications Act of 1934, as amended ("Act"), we
deny in part and grant in part the Petition for Reconsideration
("Petition") filed by Christopher M. Myers ("Mr. Myers") in response
to the Forfeiture Order issued by the Enforcement Bureau's South
Central Region on September 13, 2010. The Forfeiture Order imposed a
monetary forfeiture in the amount of $10,000 for Mr. Myers's willful
and repeated violation of section 301 of the Act, involving Mr.
Myers's operation of an unlicensed radio transmitter on the frequency
95.9 MHz in Lauderhill, Florida. For the reasons set forth below, we
deny in part and grant in part the Petition and reduce the forfeiture
2. On July 12, 2010, the Enforcement Bureau's Miami Office ("Miami
Office") issued a Notice of Apparent Liability for Forfeiture ("NAL")
to Mr. Myers for operation of an unlicensed radio station on the
frequency 95.9 MHz, which was affirmed in the Forfeiture Order. As
discussed in the NAL and referenced in the Forfeiture Order, agents
from the Miami Office determined that Mr. Myers, despite receipt of a
Notice of Unlicensed Operation, continued to operate an unlicensed
station on 95.9 MHz from his residential condominium in Lauderhill,
Florida. In the Petition, Mr. Myers requests cancellation or reduction
of the proposed forfeiture based on his claims that he did not operate
the unlicensed station and that he was unable to pay the $10,000
3. Specifically, Mr. Myers asserts that: (1) although he owns the
residential condominium referenced in the NAL, the condominium was
occupied and controlled by a renter from 2007 until 2010 and that he
resided elsewhere during that period; (2) although he was present in
the condominium during the inspection on March 7, 2010, the
transmitter was not transmitting at that time; (3) after he received
notice of the unlicensed operation, he took affirmative steps to
terminate the lease with the unidentified renter; (4) a broadcasting
outfit known as WBIG is responsible for any unlicensed operations on
95.9 MHz and 91.7 MHz; and (5) he does not hold any pecuniary interest
4. The forfeiture amount in this case was assessed in accordance with
section 503(b) of the Act, section 1.80 of the Commission's rules
("Rules"), and the Commission's Forfeiture Policy Statement. In
examining the Petition, 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
grant in part and deny in part the Petition, and reduce the forfeiture
based on Mr. Myers's documented inability to pay.
5. First, we do not find Mr. Myers's statement that he did not reside in
the residential condominium reliable. Mr. Myers's driver's license and
most recent vehicle registration list the condominium as his
residence. Mr. Myers received and signed for a NOUO and the NAL at the
condominium. We believe this demonstrates that Mr. Myers did in fact
reside in the condominium. Moreover, Mr. Myers's assertion directly
contradicts his statement to Lauderhill police on March 7, 2010 that
he had moved back into the condominium "four months or so ago."
Therefore, by his own admission, Mr. Myers resided in the condominium
from December 2009 to March 2010, a period of time covering when the
unlicensed station was in operation (February 4, 2010, and March 7,
2010). Thus, we find no reason to cancel or reduce the forfeiture on
6. Second, we disagree with Mr. Myers's statement that the station was
not transmitting on March 7, 2010. At approximately 6:50 P.M. on March
7, 2010, agents from the Miami Office determined that an unlicensed
station was operating from the condominium. The Lauderhill Police
Department executed a search warrant for the condominium at
approximately 10:00 P.M. and found only Mr. Myers present. After
observing the unlicensed station on the air at 10:41 P.M., agents from
the Miami Office entered the condominium at approximately 10:50 P.M.,
observed the transmitting equipment, and found only Mr. Myers and the
Lauderhill police present. The unlicensed station continued to
transmit until FCC agents disconnected the transmitter, which was
located in the residence, at approximately 11:10 P.M. Thus, Mr. Myers
was present in the condominium when the unlicensed station was
operating on March 7, 2010.
7. Third, we also do not find that Mr. Myers's alleged uncorroborated
steps to terminate the lease with a renter for the condominium after
he received the NOUO warrant mitigation of the forfeiture. As stated
above, we believe Mr. Myers resided in the condominium before and
after the NOUO was issued. However, even if he took such steps, the
Commission has long held that post-notification corrective action
taken to come into compliance with the Rules is expected, and does not
nullify or mitigate any prior forfeitures or violations. Moreover,
even if the uncorroborated lease existed, as stated above, Mr. Myers
admitted to the Lauderhill police that he resided in the condominium
from December 2009 to March 2010 and that he knew the equipment was
located in the condominium. Therefore, based on his admissions alone,
the Bureau could have found Mr. Myers in willful and repeated
violation of the Act.
8. Fourth, whether WBIG is also associated with the unlicensed station
and whether Mr. Myers owns an interest in WBIG have no bearing on our
determination as to Mr. Myers's operation of the unlicensed station.
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. 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." That is, 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 radio stations generally. To
determine whether an individual is involved in the general conduct or
management of the station, we look to, among other things, 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
9. Mr. Myers admitted to the Lauderhill police that he was aware the
transmitting equipment was located in the condominium, but he asserted
that he did not know what the equipment was used for and that the
previous tenant had brought it into the unit. Assuming, arguendo, that
Mr. Myers did not technically operate the radio station equipment in
his residence and was originally unaware of the nature of the
equipment, once he received the NOUO he had the opportunity to
evaluate all unknown electronic equipment in his residence and ensure
that operation did not continue. On March 7, 2010, agents from the
Miami Office observed a coaxial cable that connected a roof-mounted
antenna on the condominium building to an FM radio transmitter
operating on the frequency 95.9 MHz located inside Mr. Myers's
residence. Mr. Myers was the only person present in the residence,
besides the Lauderhill police, on March 7, 2010 when the station was
in operation. Therefore, at a minimum, Mr. Myers allowed the radio
station equipment to remain in a residential space under his control
and could have removed or unplugged the equipment at any time. Thus,
Mr. Myers exercised control over the station which qualifies as
operation under section 301 of the Act. Based on the evidence before
us, we uphold our finding that Mr. Myers is liable under section 301
of the Act for the willful and repeated operation of an unlicensed
10. Finally, with regard to an individual's or entity's inability to pay
claim, the Commission has determined that, in general, gross revenues
are the best indicator of an ability to pay a forfeiture. Having
reviewed Mr. Myers's submitted documentation, we conclude that the
forfeiture should be reduced to $5,000 based on his documented
inability to pay the forfeiture amount. Accordingly, finding that Mr.
Myers operated an unlicensed radio station and is unable to pay the
full proposed forfeiture amount, we grant in part and deny in part the
Petition and reduce the forfeiture to $5,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED, pursuant to section 405 of the
Communications Act of 1934, as amended, and section 1.106 of the
Rules, that the Petition for Reconsideration filed by Christopher M.
Myers IS GRANTED IN PART AND DENIED IN PART.
12. IT IS ALSO ORDERED that, pursuant to section 503(b) of the Act, and
sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Christopher M.
Myers IS LIABLE FOR A MONETARY FORFEITURE in the amount of five
thousand dollars ($5,000) for violations of section 301 of the Act.
13. 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
Memorandum Opinion and 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 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. Mr. Myers shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is made.
14. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both regular mail and by certified mail, return receipt
requested, to Christopher M. Myers at his address of record and to his
attorney, Kenneth S. Mair, Esq., Mair, Mair & Associates P.A., 3500
North State Road 7, Suite 479, Fort Lauderdale, FL 33319.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 405.
Although Mr. Myers captioned his pleading as an "Answer to Notice of
Apparent Liability for Forfeiture" and it was dated within the timeframe
for response, due to misrouting by the U.S. Post Office, the pleading was
not received by the Miami Office until September 29, 2010, after release
of the Forfeiture Order. Accordingly, we have treated Mr. Myers's pleading
as a petition for reconsideration of the Forfeiture Order. See Letter from
Kenneth S. Mair, Esq., Counsel to Mr. Myers, to Miami Office (August 11,
Christopher M. Myers, Forfeiture Order, 25 FCC Rcd 13032 (Enf. Bur. South
Central Region, 2010) ("Forfeiture Order").
47 U.S.C. S: 301.
Christopher M. Myers, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 9069 (Enf. Bur. Miami Office, 2010) ("NAL").
On August 14, 2008, the Miami Office issued a Notice of Unlicensed
Operation ("NOUO") to Mr. Myers for his unlicensed operation of an FM
broadcast station on the frequency 91.7 MHz from his residential
condominium in Lauderhill, Florida. The NOUO warned that unlicensed
operation of a radio station violated the Act and the Rules and that
continued operation could subject the operator to further enforcement
Petition at 2-3.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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 U.S.C. S: 503(b)(2)(E).
The Lauderhill police department conducted surveillance at the condominium
building several nights before March 7, 2010 and observed Mr. Myers's
vehicle parked in front each night, thereby corroborating that Mr. Myers
did indeed reside at the condominium in March 2010.
See Supplemental Report of Detective Charles Smith, Lauderhill Police
Department, Criminal Investigations Division dated March 25, 2010 ("Police
We note that the renter named in the Petition does not match the first
name of the renter provided to the Lauderhill police during Mr. Myers's
interview on March 7, 2010.
See e.g., International Broadcasting Corporation, Order on Review, 25 FCC
Rcd 1538, 1540, para. 6 (2010); Seawest Yacht Brokers, Forfeiture Order, 9
FCC Rcd 6099 (1994); Rama Communications, Inc., Memorandum Opinion and
Order, 24 FCC Rcd 4981 (Enf. Bur. 2009); Bethune-Cookman College, Inc..
Forfeiture Order, 24 FCC Rcd 4513 (South Central Region 2009).
47 U.S.C. S: 301.
Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11 (Enf. Bur.
See Campbell v. U.S., 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 47 U.S.C S: 307(c)(1).
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).
See Police Report.
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 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, Forfeiture
Order, 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: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S:S: 301, 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 11-1217
Federal Communications Commission DA 11-1217