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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No: EB-10-MA-0198
Durrant Clarke ) NAL/Acct. No: 201132600007
Miami, Florida ) FRN: 0020872792
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 19, 2011 Released: May 19, 2011
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Durrant Clarke ("Mr. Clarke"), 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 95.9 MHz from his business in Miami, Florida. We conclude
that Mr. Clarke is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
2. On November 6, 2010, and again on November 20, 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 business in Miami,
Florida. According to property records, Mr. Clarke is the owner of the
property at this address. According to Florida corporation records,
Mr. Clarke is the owner and director of the business at this location.
The agents determined on November 6, 2010 that the signals exceeded
the limits for operation under Part 15 of the Commission's rules
("Rules), and therefore required a license. Commission records showed
no authorization issued to Mr. Clarke or to anyone for operation of an
FM broadcast station at or near this address on this frequency.
3. During the November 20, 2010 inspection of the unlicensed radio
station at Mr. Clarke's business, Mr. Clarke stated that he was the
owner of the property and the business and, in response to a request
to inspect the transmitting equipment, he showed the agents an
unlocked room adjoining his office, which contained an operational FM
broadcast transmitter. Mr. Clarke stated that: (1) he allowed an
acquaintance to place the transmitting equipment there about four
weeks earlier; (2) he was aware of the equipment when it was installed
and was aware it was a radio transmitter of some kind; (3) the
equipment used his electrical power and used his router to connect to
the internet; and (4) he turned the transmitter on and off at
different times in the past per instructions from his acquaintance.
During the inspection, Mr. Clarke turned the transmitter off and the
agents confirmed that the station they had monitored on 95.9 MHz
simultaneously ceased operation.
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 section 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. On November 6 and again on November 20, 2010, agents from the Miami
Office determined that an unlicensed radio station on the frequency
95.9 MHz was operating from Mr. Clarke's business address in Miami,
Florida. A review of the Commission's records revealed that Mr. Clarke
did not have a license to operate a radio station at this location. As
discussed more fully below, we find that Mr. Clarke is apparently
liable for operating the unlicensed radio station on 95.9 MHz because
he demonstrated control over the management of the station as a whole.
7. Together, the facts show Mr. Clarke had control of the station and
thus was involved in the general conduct or management of the station.
During the inspection, and by his own admission, Mr. Clarke had
control over the physical space in which the transmitter was located,
provided the station's electricity and internet access, was aware that
the transmitter was there, and turned the transmitter on and off
several times. Mr. Clarke also demonstrated control over the station
by turning the transmitter off during the inspection. The fact that
someone else also may have been involved in the station's operation
does not make Mr. Clarke 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. Because
Mr. Clarke consciously operated the station on more than one day, the
apparent violation was willful and repeated. Based on the evidence
before us, we find that Mr. Clarke apparently willfully and repeatedly
violated section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
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. Clarke is apparently liable for a forfeiture in the amount of
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act
and sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
Durrant Clarke is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violation of section 301 of the Act.
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Durrant Clarke 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 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 procedures,
contact the Financial Operations Group Help Desk at 1-877-480-3201 or
Email: ARINQUIRIES@fcc.gov. Durrant Clarke shall send electronic
notification on the date said payment is made to
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,
South Central Region, Miami Office, P.O. Box 520617, Miami, FL
33152-0617, and must include the NAL/Acct. No. referenced in the
caption. The written statement shall also be emailed 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 Durrant Clarke 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.
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), recon. denied,
7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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).
See, e.g., Vicot Chery, Notice of Apparent Liability for Forfeiture, 25
FCC Rcd 14596 (Enf. Bur. 2010).
47 U.S.C. S: 301.
See, e.g., Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11
(Enf. Bur. 2005); Robert Brown, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13740 (Enf. Bur. 2010); Loyd Morris, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).
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, 0.204, 0.311, 0.314,
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-926
Federal Communications Commission DA 11 -926