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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-08-NY-0291
Dexter Blake NAL/Acct. No.: 200932380004
Mount Vernon, New York FRN: 0018292433
Memorandum opinion and order
Adopted: December 13, 2012 Released: December 13, 2012
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (MO&O), issued pursuant to
Section 405 of the Communications Act of 1934, as amended (Act), and
Section 1.106 of the Commission's rules (Rules), we grant in part and
deny in part the Petition for Reconsideration (Petition) filed by
Dexter Blake. Mr. Blake seeks reconsideration of the Forfeiture Order
issued by the Enforcement Bureau's Northeast Region in this
proceeding. The Forfeiture Order imposed a monetary forfeiture in the
amount of ten thousand dollars ($10,000) against Mr. Blake for
willfully and repeatedly operating an unlicensed radio broadcast
station on the frequency 101.5 MHz in Mount Vernon, New York, in
violation of Section 301 of the Act. For the reasons discussed below,
we reduce the forfeiture to one thousand seven hundred dollars
2. On March 3, 2009, the Enforcement Bureau's New York Office issued a
Notice of Apparent Liability for Forfeiture (NAL) in the amount of
$10,000 to Mr. Blake for operating an unlicensed broadcast station on
the frequency 101.5 MHz in Mount Vernon, New York. Mr. Blake did not
file a response to the NAL. On July 22, 2010, the Enforcement Bureau's
Northeast Region issued a Forfeiture Order affirming the findings in
the NAL and assessing a $10,000 forfeiture.
3. In his Petition, Mr. Blake admits to having operated the unlicensed
station, but claims that cancellation is warranted because the
individual from whom he received the equipment did not advise him that
he needed an FCC license. In addition, Mr. Blake requests a reduction
or cancellation of the forfeiture based on his inability to pay.
4. A petition for reconsideration that relies on facts not previously
presented to the designated authority will be entertained only if: (1)
the designated authority (the Enforcement Bureau in this instance)
determines that consideration of the new facts is required to serve
the public interest; (2) the petition relies on facts that relate to
events that occurred or circumstances that have changed since the last
opportunity to present such matters; or (3) the petition relies on
facts unknown to the petitioner until after his last opportunity to
present such matters. In this instance, we find that the public
interest warrants consideration of Mr. Blake's Petition.
5. Although Mr. Blake concedes operating an unlicensed radio station, in
violation of Section of the 301 of the Act, he nonetheless urges the
Bureau to cancel the forfeiture by arguing that his violation resulted
from his reliance on erroneous advice. We decline to cancel the
forfeiture on this basis. It is well established that the Commission
does not consider ignorance of the law or reliance on erroneous or
misleading advice from third parties as mitigating circumstances that
justify cancellation or reduction of a forfeiture, and we see no
reason to depart from that long-established policy.
6. Mr. Blake also asserts that the forfeiture, in any event, would pose a
financial hardship and, therefore, requests reduction or cancellation
of the forfeiture on this basis as well. With regard to an
individual's or entity's inability to pay, the Commission has
determined that, in general, gross revenues are the best indicator of
an ability to pay a forfeiture. We have reviewed the documents that
Mr. Blake submitted in support of his inability to pay claim, and find
sufficient basis to reduce the forfeiture to $1,700. However, we
caution Mr. Blake that a party's inability to pay is only one factor
in our forfeiture calculation analysis, and is not dispositive. We
have previously rejected inability to pay claims in cases of repeated
or otherwise egregious violations. Therefore, future violations of
this kind may result in significantly higher forfeitures that may not
be reduced due to Mr. Blake's financial circumstances.
IV. ordering clauses
7. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's rules, that the Petition for Reconsideration filed by
Dexter Blake IS GRANTED IN PART AND DENIED IN PART.
8. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,
Dexter Blake IS LIABLE FOR A MONETARY FORFEITURE in the amount of one
thousand seven hundred dollars ($1,700) for violation of Section 301
of the Act.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Memorandum Opinion and Order. If the forfeiture
is not paid within the period specified, the case may be referred to
the U.S. Department of Justice for enforcement of the forfeiture
pursuant to Section 504(a) of the Act. Dexter Blake shall send
electronic notification of payment to NER-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
Any request for full payment under an installment plan should be sent to:
Chief Financial Officer-Financial Operations, Federal Communications
Commission, 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 by phone, 1-877-480-3201, or by
10. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Mr. Blake at his address of record and to Lewis H.
Goldman, counsel for Mr. Blake, at 45 Dudley Court, Bethesda, Maryland
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
See Dexter Blake, Petition for Reconsideration (Aug. 23, 2010) (on file in
Dexter Blake, Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur., Northeast
Region 2010) (Forfeiture Order), aff'g, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932380004 (Enf. Bur., New York Office rel.
Mar. 3, 2009) (NAL).
Forfeiture Order, supra note 4. See 47 U.S.C. S: 301.
NAL, supra note 4.
Forfeiture Order, supra note 5.
Petition at 1.
47 C.F.R. S:1.106(c).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387, para. 3 (holding that ignorance of the law or
inadvertent mistakes are not mitigating circumstances that can serve to
justify a forfeiture reduction); Paisa 2 Car and Limousine Service, Inc.,
Memorandum Opinion and Order, 26 FCC Rcd 14423, 14424, para. 5 (Enf. Bur.
2011) (declining to cancel forfeiture based on licensee's claim that it
did not know that it was operating on unauthorized frequency); Kenneth
Paul Harris, Sr., 15 FCC Rcd 12933, 12935, para. 7 (Enf. Bur. 2000)
(denying a mitigation claim of a broadcast licensee, stating that
licensee's ignorance of the law did not excuse the unauthorized transfer
of the station); Lakewood Broadcasting Service, Inc., 37 FCC 2d 437, 438,
para. 6 (1972) (denying a mitigation claim of a broadcast licensee who
asserted an unfamiliarity with the station identification requirements).
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
See 47 U.S.C. S: 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).
Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
Region 2011) (holding that violator's repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay)
(petition for reconsideration pending); Hodson Broadcasting Corp.,
Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
permittee's continued operation at variance with its construction permit
constituted an intentional and continuous violation, which outweighed
permittee's evidence concerning its ability to pay the proposed
forfeitures). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd 2281,
2284, para. 8 (2012) (reducing forfeiture based on inability to pay, but
warning that future violations of the same kind may not be reduced due to
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
Federal Communications Commission DA 12-1954
Federal Communications Commission DA 12-1954