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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Whisler Fleurinor Fort Lauderdale, Florida ) ) ) ) ) )
File No.: EB-11-MA-0123 NAL/Acct. No.: 201232600006 FRN: 0020655106
Adopted: February 8, 2013 Released: February 8, 2013
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-five thousand dollars ($25,000) to Whisler
Fleurinor for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended (Act).^ The violations involved
Mr. Fleurinor's operation of an unlicensed radio transmitter on the
frequency 99.5 MHz in Fort Lauderdale, Florida.
2. The Enforcement Bureau's records reflect that Mr. Fleurinor has been
cited multiple times for unlicensed operation of a radio broadcast
station since 2008. The first instance was on January 14, 2008, when
the Bureau's Miami Office issued a Notice of Unlicensed Operation
(NOUO) to Mr. Fleurinor after it was determined that he was operating
a radio station on the frequency 97.7 MHz from a commercial property
in Fort Lauderdale, Florida.^ The NOUO warned Mr. Fleurinor that
operation of an unlicensed station violated the Act and the
Commission's rules and could result in further enforcement action.^ On
March 16 and August 24, 2010, agents from the Miami Office used
direction-finding techniques to determine that an unlicensed broadcast
station operating on the frequency 99.5 MHz was located in a
commercial property in Fort Lauderdale, Florida, which according to
Florida property records was owned by Mr. Fleurinor.^ During the
August 24, 2010 inspection of the unlicensed station, Mr. Fleurinor
admitted to owning the antenna and transmitter.^ After confirming the
violation, Mr. Fleurinor was hand-delivered another NOUO.^
3. Despite receipt of the second NOUO, agents from the Miami Office
confirmed on August 31, 2010 that transmissions on 99.5 MHz were still
emanating from the antenna located on Mr. Fleurinor's commercial
property.^ Consequently, on March 4, 2011, the Miami Office issued the
first of two Notices of Apparent Liability (NAL) to Mr. Fleurinor for
operating an unlicensed radio station, in violation of Section 301 of
the Act.^ The First NAL proposed a $20,000 forfeiture, which included
an upward adjustment in view of the record evidence that Mr. Fleurinor
continued to operate the radio station despite receiving prior notices
of the violation.^ Mr. Fleurinor responded to the First NAL,
acknowledging the violations, but urging cancellation or reduction of
the forfeiture based on an inability to pay claim.^ On October 20,
2011, the South Central Region of the Enforcement Bureau issued a
Forfeiture Order, affirming its findings in the First NAL, but agreed
to reduce the forfeiture amount to $500 based solely on Mr.
Fleurinor's inability to pay claim.^ Thereafter, Mr. Fleurinor paid
the $500 forfeiture.
4. 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, and again traced it
to Mr. Fleurinor's commercial property in Fort Lauderdale, Florida,
the same address which was identified in the First NAL.^ As a result,
the Miami Office issued to Mr. Fleurinor a second Notice of Apparent
Liability for Forfeiture (Second NAL) ^ on February 1, 2012, which
proposed a $25,000 forfeiture.^ The proposed forfeiture included a
$15,000 upward adjustment because of the deliberate nature of the
violation, given that Mr. Fleurinor had already been fined and issued
multiple NOUOs for the same violation.^ Mr. Fleurinor submitted a
response to the Second NAL, denying that he violated the Act or any
FCC order.^ More specifically, Mr. Fleurinor asserts that "there [has]
been no radio transmission of any kind for at least 6 months, [and
that] there is no radio equipment at this location."^ Mr. Fleurinor
also asserts that the "only remnant of any radio equipment is a roof
antenna . . . which has been and continues to be unconnected and not
operational."^ Finally, Mr. Fleurinor states that he is unable to pay
the forfeiture in any event and, therefore, urges cancellation on that
basis as well.^
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Commission's
rules (Rules),^ and the Forfeiture Policy Statement.^ In examining Mr.
Fleurinor's response, Section 503(b)(2)(E) 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.^ We have considered Mr.
Fleurinor's response to the NAL in light of these statutory factors
and find that neither cancellation nor reduction of the forfeiture is
warranted for the reasons discussed below.
A. Unlicensed Broadcast Operations
6. We affirm the NAL's finding that Mr. Fleurinor violated Section 301 of
the Act.^ 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.^ As reflected in the NAL, agents from the Miami
Office determined that unlicensed radio transmissions on the frequency
99.5 MHz emanated from the antenna located on top of Mr. Fleurinor's
commercial property on August 10, November 3, and December 7, 2011.
Mr. Fleurinor admits in his NAL Response that the antenna at issue was
his, but denies that he was operating the unlicensed station on the
specified dates by asserting that any radio transmission had already
ceased "at least 6 months" ago and that the radio equipment has since
7. We do not find Mr. Fleurinor's assertions to be credible, given the
more reliable record evidence adduced by the Miami Office over a
period of several months, and in view of Mr. Fleurinor's past history
of repeated noncompliance despite promises to comply. The Bureau's
uncontroverted evidence shows that the Miami agents, during each of
the three dates of the investigation, observed no other antennas in
the general vicinity of Mr. Fleurinor's antenna, rendering Mr.
Fleurinor's antenna as the definitive source of the unlicensed radio
transmissions. The transmissions were also operating on the same
frequency (i.e., 99.5 MHz) that Mr. Fleurinor previously conceded to
using for his unlicensed radio operations. The consistency of the
results of the agents' direction-finding techniques over three
different months make it highly unlikely that the agents erred in
their determination as to the source of the unlicensed radio
transmissions. Further, Mr. Fleurinor has not submitted any objective
evidence that would raise questions about the accuracy of the agents'
findings or any evidence that could support his assertions. Therefore,
based on the evidence before us, we are convinced that Mr. Fleurinor
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment (again) without the required Commission
B. Denial of Inability to Pay Claim
8. We also deny Mr. Fleurinor's request that we cancel the $25,000
proposed forfeiture based on his inability to pay claim. As indicated
above, Section 503(b)(2)(E) of the Act states that, in determining the
amount of a forfeiture penalty, the Commission will 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.^ We have reviewed Mr. Fleurinor's financial
documentation, which, under ordinary circumstances, and standing
alone, may arguably support a reduction of the forfeiture.^ We
emphasize, however, that an individual's ability (or inability) to pay
a forfeiture is just one of the factors we consider in determining the
appropriate forfeiture penalty for violations of the Act and the
Rules.^ In this instance, we find that all the aforementioned Section
503(b)(2)(E) factors militate against cancellation or reduction of the
forfeiture notwithstanding Mr. Fleurinor's purported financial
9. The record evidence in this case shows that Mr. Fleurinor is a repeat
offender, having already received and paid a forfeiture for the very
same violations at issue here; and has been in violation, either
continuously or intermittently since at least 2008. With respect to
the more recent violations, there is no question that Mr. Fleurinor
was fully aware that his actions violated the Act. As such, his repeat
violations of the statute demonstrate a complete disregard for the
Commission's authority. Moreover, Mr. Fleurinor's further violations
of the Act after being issued a Forfeiture Order (that substantially
reduced a $20,000 proposed forfeiture in the First NAL to $500 based
solely on consideration of his inability to pay claim) convinces us
that the previous $500 forfeiture imposed (which he has paid) was not
a sufficient deterrent. There simply is nothing on the record in this
case, including the documents that Mr. Fleurinor submitted in support
of his inability to pay claim, that warrants any leniency or
mitigation of the proposed forfeiture amount.^ Therefore, after
consideration of the entire record and the factors listed above, we
find that a forfeiture in the amount of $25,000 is warranted.^ We also
caution Mr. Fleurinor that future violations of the same kind may
result in more severe enforcement action, including but not limited to
higher monetary forfeitures, criminal prosecution, and the in rem
seizure of his equipment.
IV. ORDERING CLAUSES
10. 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, Whisler
Fleurinor IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for violations of Section 301
of the Act.^
11. 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 Forfeiture 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.^ Whisler Fleurinor shall send electronic
notification of payment to SCR-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.
12. 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 e-mail, ARINQUIRIES@fcc.gov.
13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class and Certified Mail, Return Receipt Requested,
to Whisler Fleurinor at his address of record and to his attorney,
Rocco G. Marucci, P.A., at 116 Southeast 6^th Court, Fort Lauderdale,
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 301.
^ See Whisler Fleurinor, Notice of Unlicensed Operation (Enf. Bur., Miami
Office rel. Jan. 14, 2008) (First NOUO). The Miami Office received a
return receipt for the First NOUO signed by Mr. Fleurinor and a response
to the First NOUO signed by Mr. Fleurinor's attorney. See Letter from
Rocco G. Marucci, P.A. to Stephanie Dabkowski, Resident Agent, Miami
Office (Jan. 22, 2008). In the response, Mr. Fleurinor's attorney stated
that "Mr. Fleurinor had no intention of violating any federal or state
laws with respect to any radio transmissions from his business. He has
advised that he will have the equipment checked to insure that it complies
with the FCC levels and does not violate any laws or regulations."
^ Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC
Rcd 2478 (Enf. Bur. 2011) (First NAL).
^ Id. at 2478, para 3.
^ Id. & n.3.
^ First NAL, 26 FCC Rcd at 2479.
^ See supra note 4.
^ See Letter from Lewis H. Goldman, P.C., attorney for Mr. Fleurinor, to
Diane Law-Hsu, Regional Counsel, South Central Region, Enforcement Bureau
(Aug. 2, 2011) (on file in EB-10-MA-0048).
^ Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf. Bur. 2011)
^ Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 27 FCC
Rcd 489 (Enf. Bur. 2012) (Second NAL). A comprehensive recitation of the
facts and history of this case can be found in the Second NAL and is
incorporated herein by reference.
^ Id. at 491, para. 6.
^ See Letter from Rocco C. Marucci, P.A., Counsel for Whisler Fleurinor,
to Stephanie Dabkowski, Resident Agent, Miami Office at 1 (Mar. 30, 2012)
(on file in EB-11-MA-0123) (Second NAL Response). Mr. Fleurinor requested
and obtained an extension in which to submit a response to the NAL.
^ Id. at 1.
^ Mr. Fleurinor also proposes to settle the proceeding with a payment of
$500 and with no admission of guilt. The Bureau respectfully declines his
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL, supra note 12.
^ 47 U.S.C. S 301.
^ Second NAL Response at 1.
^ 47 U.S.C. S 503(b)(2)(E).
^ Indeed, we have already substantially reduced the forfeiture proposed
against Mr. Fleurinor in the First NAL from $20,000 to $500 based on his
inability to pay claim, yet he continued with his unlicensed radio
operations. As we have previously warned unlicensed radio operators found
in violation of Section 301, future violations of the same kind may result
in significantly higher forfeitures which may not be reduced due to
financial circumstances. See, e.g., Michael W. Perry, Forfeiture Order, 27
FCC Rcd 2281, 2284, para. 8 (2012) (fined for unlicensed radio
^ See id. at 2283-84, para. 8.
^ See, e.g., Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur.
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 Corporation, Forfeiture
Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (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).
^ If Mr. Fleurinor believes that paying this amount presents financial
difficulties, we note that he could always pursue an installment plan to
lessen the immediate impact of the forfeiture.
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
^ 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.
Federal Communications Commission DA 13-175
Federal Communications Commission DA 13-175