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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-10-MA-0145
Willis Cernogg, Jr. ) NAL/Acct. No.: 201232600003
Miami, Florida ) FRN: 0021241344
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 25, 2011 Released: October 25, 2011
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Willis Cernogg, Jr. ("Mr. Cernogg") 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 90.7 MHz in Miami, Florida. We conclude that Mr. Cernogg is
apparently liable for a forfeiture in the amount of ten thousand
2. On January 21, March 24, and April 14, 2011, in response to a
complaint, agents from the Enforcement Bureau's Miami Office ("Miami
Office") used direction-finding techniques to locate the source of
radio frequency transmissions on the frequency 90.7 MHz to a residence
in Miami, Florida, shared by Mr. Cernogg and others. On January 21 and
March 24, 2011, the agents 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 no license or authorization was
issued to Mr. Cernogg or anyone else to operate a radio station on
90.7 MHz at this location.
3. On April 14, 2011, agents from the Miami Office inspected the radio
station after the Miami Police Department ("MPD") executed a search
warrant and secured the residence. The agents observed that the
station's transmitter display read 90.7 MHz. A person who rented a
room at the residence stated that Mr. Cernogg put the radio equipment
in the locked area where MPD found it, and also provided Mr. Cernogg's
phone number. Subsequently, an agent from the Miami Office conducted
an Internet search and found profile information for user
"LadyLuckRadio907FMMiami" discussing an underground radio station on
90.7 FM in Miami; and also found a Twitter user called "LADYLUCKRADIO"
listing "ladyluckradio.net" and "club ladyluck 1610 NW 119TH." The
domain name, ladyluckradio.net, was registered to Mr. Cernogg. The
Florida Department of State's Division of Corporations ("Division of
Corporations") lists Mr. Cernogg as the registered agent of a business
called "Lady Luck Social Club, Inc.," with principal and mailing
addresses at 1610 NW 119th Street, Miami, Florida 33167, the same
address partially listed on the Twitter account for "LADYLUCKRADIO."
The phone number for Mr. Cernogg listed on one of the documents for
Lady Luck Social Club, Inc. filed with the Division of Corporations
matches the contact phone number for Mr. Cernogg that Mr. Cernogg's
housemate gave the agents on April 14, 2011. The address for Mr.
Cernogg listed in a document for Lady Luck Social Club, Inc. filed
with the Division of Corporations also matches the address for Mr.
Cernogg listed in the ladyluckradio.net domain name registration.
4. 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. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
5. 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 both the technical operation of the station, as
well as "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
6. The facts of this case demonstrate that Mr. Cernogg exercised
sufficient control over the general conduct and management of the
station, tantamount to operating the station, for purposes of section
301 of the Act. On January 21, March 24, and April 14, 2011, agents
from the Miami Office determined that an unlicensed radio station on
the frequency 90.7 MHz operated from Mr. Cernogg's residence in Miami,
Florida. A review of the Commission's records revealed that Mr.
Cernogg did not have a license to operate a radio station on this
frequency at this location. The agents also did not find any evidence
to suggest that anyone else living in the residence was involved in
the operation or management of the station. There is publicly
available information showing that Mr. Cernogg actively marketed the
unlicensed station, and used the unlicensed station to cross-promote
his other businesses (e.g., a club called the "Lady Luck Social Club")
and provide commercial advertisements under the guise of a legitimate
commercial radio station. Specifically, the unlicensed station in
Miami operating on the frequency 90.7 MHz was advertised on the
Internet with variations of the phrase "Lady Luck Radio." Mr. Cernogg
registered the domain name for the ladyluckradio.net webpage and,
according to the Division of Corporations's records, is the registered
agent for "Lady Luck Social Club, Inc." An address associated with Mr.
Cernogg is listed on the Twitter account for "LADYLUCKRADIO." Mr.
Cernogg paid utilities for the residence for a period of time and,
according to another resident living in the same house, placed the
radio equipment in a locked area to ensure its safekeeping.
7. Mr. Cernogg's apparent violations of section 301 of the Act were
"willful" because he operated the station consciously and
deliberately. Moreover, because Mr. Cernogg operated the station on
more than one day, we find the apparent violation was also repeated.
Therefore, based on the evidence before us, we find that Mr. Cernogg
apparently willfully and repeatedly violated section 301 of the Act by
operating radio transmission equipment without the required Commission
8. Pursuant to the Commission's 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 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Cernogg is apparently liable for a forfeiture 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, 0.204(b),
0.311, 0.314, and 1.80 of the Commission's rules, Willis Cernogg, Jr.
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
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Willis Cernogg, Jr.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
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 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Willis Cernogg, Jr. shall send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, Florida 33152
and include the NAL/Account number referenced in the caption. In
addition, Willis Cernogg, Jr. shall email the written response to
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 both Certified Mail, Return Receipt
Requested, and regular mail, to Willis Cernogg, Jr. at his address of
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
47 U.S.C. S: 301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, 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.
On April 14, 2011, an agent from the Miami Office found profile
information for user "LadyLuckRadio907FMMiami" promoting "WE ARE THE SOUND
TRACK TO THE REAL MIAMI...KEEP IT LOCKED IN UR RIDE 90.7 FM THE HOTTES
[sic] STATION IN THE WORLD." 90.7 FM Ladyluckradio.com website, available
at http://ladyluckradio.ning.com/profile/LadyLuckRadio907FMMiami (last
visited April 14, 2011).
See twitter.com/ladyluckradio (last visited April 15, 2011).
See www.networksolutions.com/whois-search/ladyluckradio.net (last visited
April 15, 2011).
See id. See also Articles of Amendment to Articles of Incorporation for
Lady Luck Social Club, Inc. filed with the Florida Department of State's
Division of Corporations, Sept. 21, 2011.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, para. 9.
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 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).
The address of the shared residence is listed as a former address where
Mr. Cernogg paid utilities,
Locator database (last visited Sept. 13, 2011).
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: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314,
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 11-1775
Federal Communications Commission DA 11-1775