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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-11-MA-0123
Whisler Fleurinor ) NAL/Acct. No.: 201232600006
Fort Lauderdale, Florida ) FRN: 0020655106
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 1, 2012 Released: February 1, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Whisler Fleurinor 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 99.5 MHz in
Fort Lauderdale, Florida. We conclude that Mr. Fleurinor is apparently
liable for a forfeiture in the amount of twenty-five thousand dollars
2. On March 4, 2011, the Enforcement Bureau's Miami Office (Miami Office)
issued a Notice of Apparent Liability (1st NAL) in the amount of
$20,000 to Mr. Fleurinor for willful and repeated operation of an
unlicensed radio transmitter on the frequency 99.5 MHz from his
commercial property in Fort Lauderdale, Florida. In his response to
the 1st NAL, Mr. Fleurinor did not dispute the Bureau's findings, but
nevertheless requested cancellation or reduction of the forfeiture
based on his inability to pay claim. The Bureau later reduced the
forfeiture to $500, which was based solely on Mr. Fleurinor's
inability to pay the forfeiture. Mr. Fleurinor has since paid that
3. On August 10, November 3, and December 7, 2011, agents from the Miami
Office used direction-finding techniques to locate the source of radio
frequency transmissions on the frequency 99.5 MHz to Mr. Fleurinor's
commercial property in Fort Lauderdale, Florida, the same address
which was identified in the 1st NAL. Furthermore, on each of these
dates, 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 Commission
records showed that no authorization was issued to Mr. Fleurinor, or
to anyone for any operation of an FM broadcast station on this
frequency, at or near this address.
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
A. Unlicensed Operations
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
August 10, November 3, and December 7, 2011, agents from the Miami
Office determined that Mr. Fleurinor operated an unlicensed radio
station on the frequency 99.5 MHz from his commercial property in Fort
Lauderdale, Florida. A review of the Commission's records revealed
that no license or authorization was issued to anyone to operate a
radio station on 99.5 MHz at this location. Because Mr. Fleurinor
operated this station consciously and on more than one day, we find
that the apparent violations were both willful and repeated. Based on
the evidence before us, we find that Mr. Fleurinor apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment without the required Commission
A. Proposed Forfeiture Amount
6. 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. After consideration of those factors, we find that the
violations in this case justify a $15,000 upward adjustment from the
base forfeiture amount. As the record reflects, Mr. Fleurinor
previously received and paid the 1st NAL for willfully and repeatedly
operating an unlicensed radio transmitter on the same frequency from
the same commercial property. The fact that Mr. Fleurinor would again
commit the same violation-and multiples times after he had already
been found to be in serious violation in the 1st NAL-demonstrates not
only the egregiousness of the violations here, but also his deliberate
disregard for the Act and Commission's rules. Accordingly, applying
the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that Mr. Fleurinor
is apparently liable for a forfeiture of $25,000.
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 of the Commission's rules, Whisler Fleurinor is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for violations of
Section 301 of the Act.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Whisler
Fleurinor SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. 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. 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. Whisler Fleurinor shall
send electronic notification on the date said payment is made to
10. 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/Acct. number referenced in the caption. In
addition, Whisler Fleurinor shall email the written response to
11. 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
12. 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 Whisler Fleurinor at his address of
record and to his attorneys, Lewis H. Goldman, P.C., 45 Dudley Court,
Bethesda, MD 20814, and Rocco G. Marucci, P.A., 116 Southeast 6th
Court, Fort Lauderdale, FL 33301.
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
47 U.S.C. S: 301.
Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
2478 (Enf. Bur., Miami Office 2011) (1st NAL).
Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf. Bur., South
Central Region 2011).
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. Although the agents did not measure the field
strength of the transmissions on December 7, 2011, there is no evidence to
suggest that the field strength changed since November 3, 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.
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
On March 4, 2011, we issued a Notice of Apparent Liability for Forfeiture
against Mr. Fleurinor for $20,000, for multiple violations of Section 301.
See supra note 2. The proposed forfeiture amount was found to be
appropriate given the multiple violations and deliberate disregard for the
Act and the Commission's rules. Further, the facts in the 1st NAL
indicated that Mr. Fleurinor had been repeatedly informed about the
violations since January 2008.
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.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-111
Federal Communications Commission DA 12-111