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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No: EB-10-MA-0122
Judith V. Smith, formerly known as
Judith McFarlane ) NAL/Acct. No: 201132600006
Miami, Florida ) FRN: 0020863734
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 16, 2011 Released: May 16, 2011
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Judith V. Smith, formerly known as Judith V. McFarlane ("Ms.
Smith"), apparently willfully violated sections 301 and 303(n) of the
Communications Act of 1934, as amended ("Act"), by operating an
unlicensed radio transmitter and by refusing to allow inspection of
the radio installation located in her residence in Miami, Florida. We
conclude that Ms. Smith is apparently liable for a forfeiture in the
amount of twenty-two thousand dollars ($22,000).
2. On June 27, 2010, 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 95.9 MHz to a
radio station operating from Ms. Smith's residence in Miami, FL. The
agents monitored the transmissions on 95.9 MHz and heard the station
identify itself as "Gospel Reggae FM." According to publicly available
Florida corporation records, Ms. Smith is the owner of a business
called "Gospel Reggae FM.com" that has a mailing address matching Ms.
Smith's residence in Miami, FL. The agents determined that the signals
from Ms. Smith's residence exceeded the limits for operation under
Part 15 of the Commission's rules and therefore required a license. A
review of the Commission's records showed no authorization issued to
Ms. Smith, or to anyone for operation of an FM broadcast station on
this frequency, at or near this address.
3. Also, on June 27, 2010, the agents knocked on the door of the
residence and requested to inspect the radio station located on the
premises. The individual who answered the door acknowledged that she
was the owner and occupant of the residence and identified herself as
Judith McFarlane. However, Ms Smith refused the agents' request to
inspect. She then closed the door and left for several minutes, during
which time the agents observed that the radio station on 95.9 MHz
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. 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.
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. On
June 27, 2010, Ms. Smith operated an unlicensed radio station on the
frequency 95.9 MHz from her residence in Miami, FL. A review of the
Commission's records revealed that Ms. Smith did not have a license to
operate a radio station at this location. Because Ms. Smith knowingly
operated the station, we find the apparent violation willful. Based on
the evidence before us, we find that on June 27, 2010, Ms. Smith
apparently willfully violated section 301 of the Act by operating
radio transmission equipment without the required Commission
6. Section 303(n) of the Act states that the Commission has authority to
inspect radio installations associated with stations required to be
licensed or authorized by the Act. On June 27, 2010, Ms. Smith refused
an official request by Commission agents to inspect the radio
installation located in her residence. Because Ms. Smith explicitly
refused a reasonable and duly made request by Commission agents, we
find the apparent violation willful. Based on the evidence before us,
we find that on June 27, 2010, Ms. Smith apparently willfully violated
section 303(n) of the Act by refusing an official and duly made
request by Commission agents to inspect the radio installation located
inside her residence while the station was in operation.
7. 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, and for refusing to allow
inspection is $7,000. 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.
Consequently, the $10,000 base forfeiture amount is subject to
adjustment. Commission records show that the Miami Office previously
issued a Notice of Unlicensed Operation ("NOUO") to Ms. Smith, then
using the name Judith McFarlane, for operation of an unlicensed
station on the same frequency at the same location. The fact that Ms.
Smith continued to operate after being put on notice that her
unlicensed operation contravened the Act, the Commission's rules, and
related Commission orders demonstrates a deliberate disregard for the
Commission's requirements. Based on the evidence before us, we find
that an upward adjustment is warranted and so increase the forfeiture
amount for the violation of section 301 of the Act from $10,000 to
$15,000. Applying the Forfeiture Policy Statement, section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Ms. Smith is apparently liable for a forfeiture in the amount of
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Judith V. Smith is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-two thousand dollars ($22,000) for violation of
sections 301 and 303(n) of the Act.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Judith V. Smith SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. 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 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. For questions about payment, contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Also, Judith V. Smith shall send an email
notification to SCR-Response@fcc.gov on the date said payment is
11. 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 Commission's rules. The written
statement, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Miami Office, PO
Box 520617, Miami, FL 33152 and must include the NAL/Acct. No.
referenced in the caption. The written statement shall also be emailed
12. 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.
13. 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 Judith V. Smith at her address of
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
Judith V. Smith is Judith V. McFarlane's married name.
47 U.S.C. S:S: 301, 303(n).
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.
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.
47 U.S.C. S: 303(n).
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).
JudithV. Smith, Notice of Unlicensed Operation (Enf. Bur., Miami Office,
rel. Dec. 19, 2008).
See Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 12654 (Enf. Bur. 2010) (upwardly adjusting the base amount by $10,000
because violator operated an unlicensed radio station on multiple days
with full knowledge that such action violated the rules).
47 U.S.C. S:S: 301, 303(n), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311,
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11 -871
Federal Communications Commission DA 11 -871