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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File Number: EB-08-NY-0283
Andre Alleyne )
NAL/Acct. No: 200932380003
Jessie White )
FRN: 0018 1064 01
Brooklyn, New York )
Adopted: July 25, 2011 Released: July 26, 2011
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) jointly and severally to
Andre Alleyne ("Mr. Alleyne") and Jessie White ("Ms. White") 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 96.5 MHz in Brooklyn, New York. In this
Order, we consider Mr. Alleyne's and Ms. White's arguments in support
of their request to cancel the proposed forfeiture and deny each in
2. On July 23 and 24, 2008, in response to a complaint of interference
from a licensed FM broadcast station, agents from the Enforcement
Bureau's New York Office ("New York Office") monitored 96.5 MHz in
Brooklyn, New York. On each of those days, the agent observed a radio
signal on 96.5 MHz and used direction-finding techniques to locate the
source of the transmissions to an apartment building at 580 Flatbush
Avenue, Brooklyn, New York 11225. 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. A review of the
Commission's records revealed that there was no FCC authorization to
operate a radio station on 96.5 MHz in Brooklyn, New York.
3. After completing the field strength measurements on July 24, 2008,
agents from the New York Office conducted an investigation on the roof
of the building located at 580 Flatbush Avenue. The agents observed an
FM broadcast antenna on the roof and a coaxial cable leading from the
antenna into an apartment window on the building. The agents learned
from the building superintendent that the coaxial cable went into the
apartment jointly leased by Mr. Alleyne and Ms. White. When the agents
attempted to inspect the station, the two women who answered the door
refused to allow the agents to enter the apartment. However, one of
the women, who was later identified as Ms. White, stated that she
resides in the apartment with her boyfriend. The agents advised her
that the radio station in the apartment was operating without a
license and requested that she turn off the station. After returning
to the vehicle, the agents monitored 96.5 MHz and noted that the
station was off the air.
4. On July 30, 2008, the New York Office issued a Notice of Unlicensed
Operation ("NOUO") to Mr. Alleyne and Ms. White. The NOUO warned Mr.
Alleyne and Ms. White that operation of the unlicensed radio station
on 96.5 MHz violated section 301 of the Act and outlined the potential
penalties for such a violation. The NOUO also directed Mr. Alleyne and
Ms. White to terminate operation of the unlicensed station immediately
and provided them ten days to reply. The New York Office did not
receive a response to the NOUO.
5. On October 30, 2008, an agent from the New York Office returned to 580
Flatbush Avenue and met with the building superintendent, who reported
that Mr. Alleyne contacted him shortly after the agent's investigation
on July 24, 2008, regarding the antenna on the roof. The
superintendant explained that he accompanied Mr. Alleyne to the roof
that day so that Mr. Alleyne could remove the antenna. The agent went
to the roof with the superintendent and confirmed that the antenna
previously observed on July 23 and 24, 2008 had been removed.
6. On December 10, 2008, the New York Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $10,000 to Mr.
Alleyne and Ms. White for operating an unlicensed radio station on the
frequency 96.5 MHz in Brooklyn, New York. In their response to the
NAL, Mr. Alleyne and Ms. White do not dispute the findings in the NAL,
but request that we cancel the proposed forfeiture because (1) they
allowed a friend to operate the station from their apartment; (2) they
believed the radio station complied with all FCC regulations; (3) they
ceased operating the station as soon as they became aware that it was
illegal; and (4) they do not have the financial resources to pay the
7. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Act, section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In examining Alleyne'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. As discussed below, we have
considered the response to the NAL in light of these statutory factors
and have found that a reduction in the forfeiture is not warranted.
8. Section 301 of the Act requires 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. For the purposes of
section 301 of the Act, 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." As described below, we find that Mr. Alleyne and Ms. White
are jointly and severally liable for operating the unlicensed radio
station on 96.5 MHz because the facts, taken together, show that they
demonstrated management and control over the station as a whole.
9. On July 23 and 24, 2008, agents determined, and Mr. Alleyne and Ms.
White concede, that an unlicensed radio station operated on 96.5 MHz
from their apartment. Mr. Alleyne assisted with the installation and
removal of the station's antenna on the roof of his building. In
response to the NAL, Mr. Alleyne specifically states that "we put up
the antenna" on July 20, 2008. Ms. White demonstrated control over the
station on the day of the inspection when she turned off the
transmitter at the agents' request. The fact that someone else also
may have been involved in the station's operation, as Mr. Alleyne and
Ms. White claim in their response to the NAL, does not make them any
less culpable for the station's operations. 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 similar reasons, we decline to
absolve Ms. White of liability for operation of the unlicensed
station, as requested by Mr. Alleyne. In light of the control she
demonstrated over the station during the inspection, we find that Ms.
White is equally culpable for violating section 301 of the Act.
Accordingly, we find that the totality of Mr. Alleyne's and Ms.
White's actions amounted to willful and repeated violations of section
301 of the Act.
10. We also decline to cancel or reduce the forfeiture based on Mr.
Alleyne's and Ms. White's claim that they believed the station
complied with the Commission's Rules. The Commission has consistently
stated that ignorance of the law is not a mitigating factor.
Similarly, the fact that Mr. Alleyne and Ms. White ceased operating
the station immediately upon being advised of its illegality does not
warrant a cancellation or reduction in the forfeiture. As the
Commission has stated, "corrective action taken to come into
compliance with Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or violations."
11. Mr. Alleyne and Ms. White also ask that we cancel or reduce the
proposed forfeiture based on their inability to pay. However, neither
Mr. Alleyne nor Ms. White submitted any supporting documentation. As
explicitly stated in the NAL, "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." We therefore deny
Mr. Alleyne's and Ms. White's request to cancel the forfeiture based
on their inability to pay.
12. We have examined Mr. Alleyne's and Ms. White'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. Alleyne and Ms. White willfully and repeatedly violated
section 301 of the Act and that the $10,000 forfeiture proposed in the
NAL is warranted.
IV. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended ("Act"), and sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Andre Alleyne and
Jessie White ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY
FORFEITURE in the amount of $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. 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. Alleyne and Ms. White shall also send electronic notification on
the date said payment is made to NER-Response@fcc.gov
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Andre
Alleyne and Jessie White at their addresses of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
47 U.S.C. S: 301.
Letter from Andre Alleyne to New York Office, Northeast Region,
Enforcement Bureau (January 2, 2009)("Response"). Although Jessie White
did not separately submit a response, we treat Alleyne's response as a
joint response on behalf of himself and Ms. White given that the response
requests that we absolve Ms. White of all responsibility for the station's
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
Andre Alleyne and Jessie White, Notice of Unlicensed Operation (Enf. Bur.,
New York Office, rel. July 30, 2008).
Andre Alleyne and Jessie White, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932380005 (Enf. Bur., New York Office, rel.
Dec. 10, 2008).
See supra note 2.
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).
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).
Response at 1.
47 U.S.C. S: 301.
See Joni Craig, Forfeiture Order, 21 FCC Rcd 10793 (2006) at para. 10.
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991), citing
Vernon Broadcasting, Inc., 60 RR 2d 1275, 1277 (1986) and Fay Neel
Eggleston, 19 FCC 2d 829 (1969).
See, e.g., AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd
21866, 21870-71 (2002) (finding that remedial action to correct the
violation at issue was not a mitigating factor and noting that all
licensees and Commission regulates are expected to promptly take
corrective action when violations are brought to their attention). See
also, Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994)(corrective action taken
to comply with the Rules is expected, and does not mitigate any prior
forfeitures or violations).
See NAL at para. 17.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a),
73.1560(a), 73.1745(a), 73.3526(e)(12).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1233
Federal Communications Commission DA 11-1233