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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File Number: EB-09-MA-0176
Nounoune Lubin NAL/Acct. No: 201032600004
North Miami, Florida FRN: 0020172136
Adopted: May 31, 2011 Released: May 31, 2011
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty thousand dollars ($20,000) to Nounoune Lubin
("Ms. Lubin") for willful and repeated violation of section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violations
involve Ms. Lubin's operation of an unlicensed radio transmitter on
the frequency 90.1 MHz in North Miami, Florida.
2. On September 2, 2010, the Enforcement Bureau's Miami Office ("Miami
Office") issued a Notice of Apparent Liability for Forfeiture ("NAL")
to Ms. Lubin for operation of an unlicensed radio station on 90.1 MHz.
As discussed in detail in the NAL, agents from the Miami Office
determined that Ms. Lubin, despite acknowledging receipt of two
Notices of Unlicensed Operation ("NOUOs"), apparently continued to
operate an unlicensed radio station on 90.1 MHz from her residence in
North Miami, Florida. In view of the record evidence, including the
fact that Ms. Lubin operated an unlicensed station after notice that
such activity violated the Act and the Commission's rules ("Rules"),
the NAL proposed a forfeiture of $20,000 against Ms. Lubin for
violation of section 301 of the Act. Ms. Lubin submitted a response to
the NAL requesting cancellation of the proposed forfeiture because she
claims she did not, and has not ever, operated an unlicensed radio
3. 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
Forfeiture Policy Statement. In examining Ms. Lubin'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 Ms. Lubin's response in light of these statutory factors
and impose a $20,000 forfeiture.
4. 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
September 9 and October 22, 2009, and on April 22 and May 12, 2010,
agents from the Miami Office used direction-finding techniques and
specialized radio equipment to locate the source of radio
transmissions on 90.1 MHz to Ms. Lubin's residence. In the NAL
Response, Ms. Lubin states that she "cannot prove a negative" and that
she "has not, did not, and has never operated a radio station." Ms.
Lubin provided no other information besides her assertion.
5. As discussed below, we find Ms. Lubin's assertion that she did not
operate a radio station unpersuasive and thus affirm our finding in
the NAL. The evidence before us indicates that an unlicensed radio
station was operating repeatedly on 90.1 MHz from Ms. Lubin's
residence. Agents observed a clearly visible coaxial cable coming in
through a back window of Ms. Lubin's residence that was connected on
one end to the antenna in the backyard, and on the other end to
transmitting equipment apparently located in her residence. Moreover,
Ms. Lubin signed for two written NOUOs notifying her that an
unlicensed radio station was operating in her residence. Assuming,
arguendo, that Ms. Lubin did not technically operate the radio station
equipment in her residence and was originally unaware of the nature of
the equipment, once she received the notices she had the opportunity
to evaluate all unknown electronic equipment in her residence and
ensure that operation did not continue.
6. Moreover, at a minimum, Ms Lubin allowed the radio station equipment
to remain in a residential space under her control and could have
removed or unplugged the equipment at any time. 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
exercised." Thus, Ms. Lubin exercised control over the station which
qualifies as operation under section 301 of the Act. Based on the
evidence before us, we find that Ms. Lubin willfully and repeatedly
violated section 301 of the Act by operating an unlicensed radio
station. Accordingly, pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement, we conclude that
cancellation of the forfeiture is unwarranted and impose a forfeiture
in the amount of $20,000.
IV. ORDERING CLAUSES
7. 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(f)(4) of the Commission's rules, Nounoune Lubin
IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty thousand
dollars ($20,000) for violations of section 301 of the Act.
8. 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.
Ms. Lubin shall also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Nounoune Lubin at
her address of record and to her attorney, Ovide Val, at 1031 Ives
Dairy Rd, Suite 228, Miami, Florida 33179.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 U.S.C. S: 301.
Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
12654 (Enf. Bur. 2010).
The NOUOs warned that unlicensed operation of a radio station on 90.1 MHz
violated the Act and could subject her to further enforcement action,
including a substantial monetary forfeiture.
See Letter from Ovide Val, Esq., to Steven DeSena, Resident Agent, Miami
Office, Enforcement Bureau (October 9, 2010) ("NAL Response").
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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
NAL Response at 1.
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,
Report and Order, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV,
Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-971
Federal Communications Commission DA 11-971