******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) James N. Dispoto ) File No. EB-98-TP-167 Ocala, Florida ) NAL/Acct. No. 915TP0003 MEMORANDUM OPINION AND ORDER Adopted: April 6, 2000 Released: April 7, 2000 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order (``Order''), we affirm a monetary forfeiture in the amount of two thousand dollars ($2,000) against James N. Dispoto for willfully violating Section 301 of the Communications Act of 1934 (``Act''), as amended.1 The noted violation was based on James N. Dispoto's operation of an FM radio station without a Commission license in Ocala, Florida. 2. On December 10, 1998, the Commission's Tampa, Florida Field Office (``Field Office''), issued a Notice of Apparent Liability for Forfeiture (``NAL'') in the amount of two thousand dollars ($2,000) to James N. Dispoto.2 He did not file a timely response to the NAL.3 On February 22, 1999, the former Compliance and Information Bureau issued a Forfeiture Order affirming the monetary forfeiture.4 On March 10, 1999, James N. Dispoto filed a response to the Forfeiture Order. We will treat this March 10, 1999 response as a petition for reconsideration of the Forfeiture Order pursuant to Section 1.106 of the Commission's Rules (``Rules'').5 II. BACKGROUND 3. On February 4, 1998, the Field Office received a complaint that James N. Dispoto was operating an unlicensed radio station from 4360 S.E. 60th Street, Ocala, Florida (``4360 S.E. 60th Street''). Agents from the Field Office visited 4360 S.E. 60th Street on March 3, 1998, at which time they met with James N. Dispoto and his mother, Elaine Dispoto. The agents saw a ground plane antenna mounted on a 50 foot tower behind 4360 S.E. 60th Street, where the Dispotos resided. The radio station was not operating at that time. Although the Dispotos did not deny that they operated a radio station on 96.3 MHz from 4360 S.E. 60th Street, they did not permit the agents to inspect the radio station. The agents told the Dispotos about the Commission's licensing requirements, and warned them of the penalties associated with unlicensed broadcasting. 4. On March 9, 1998, the Field Office sent a letter via certified mail, return receipt requested, and first class mail to Elaine Dispoto that memorialized the agents' warning to her on March 3, 1998. James N. Dispoto responded to the Field Office's March 9, 1998 letter in a letter dated April 2, 1998, in which he claims, among other things, that ``at no time have I been broadcasting any programming out of my house that could be in violation of the FCC['s] laws and regulations.'' He admits, however, that ``a few months ago I tried to run some test[s] on the dial to see if there was a possibility of [operating] a small low power station. . . .'' According to him, his test signals did not travel beyond three blocks. 5. On May 1, 1998, the Field Office received another complaint that James N. Dispoto was operating an unlicensed radio from 4360 S.E. 60th Street, and that the radio station's signal could be heard approximately five to 10 miles away. On June 2, 1998, agents visited the Dispoto residence at 4360 S.E. 60th Street. This time, the radio station was operating. The agents determined that the signal's field strength exceeded the permitted level for a low power transmitter.6 The agents identified themselves to the Dispotos, James Dispoto, Jr. (James N. Dispoto's father), Elaine Dispoto, and James N. Dispoto. The Dispotos did not permit the agents to inspect the radio station. This time the agents gave James N. Dispoto a written warning pertaining to the unlicensed radio station, which he signed for noting receipt. The warning indicated that James N. Dispoto faced, among other things, a monetary penalty of up to $11,000. 6. On June 11, 1998, the Field Office issued a NAL to James, Jr. and Elaine Dispoto for a violation of Section 301 of the Act as a result of the operation of the unlicensed radio station from 4360 S.E. 60th Street.7 James, Jr. and Elaine Dispoto responded to the NAL on July 23, 1998, stating that their adult son, James N. Dispoto, operated the radio station. The Field Office subsequently canceled the NAL issued to James, Jr. and Elaine Dispoto on December 9, 1998.8 On December 10, 1998, as noted above, the Field Office issued the subject NAL to James N. Dispoto for willful violation of Section 301 of the Act as a result of his unlicensed operation of the FM radio station on 96.3 MHz from 4360 S.E. 60th Street. The NAL was followed by the former Compliance and Information Bureau's Forfeiture Order released on February 22, 1999, which affirmed the forfeiture issued to James N. Dispoto. 7. James N. Dispoto's March 10, 1999 petition for reconsideration of the Forfeiture Order states that he is unable to pay the forfeiture because he is indigent with no income. In support thereof, he states that he has not worked, does not drive or own a car, and has not filed an income tax return. He states further that he has not broadcast on 96.3 MHz (or any other channel) since the June 2, 1998 visit by the Field Office agents, and that he does not intend to ever broadcast again until low power licenses are available. 8. On January 10, 2000, the Field Office sent James N. Dispoto a letter requesting that he supplement the information provided in his March 10, 1999 petition for reconsideration regarding his financial status. In his response, filed January 18, 2000, James N. Dispoto avers that he is not employed and has no income or assets and is not filing a 1999 tax return. 9. Subsequent investigatory efforts by Commission agents on January 18 and 28, 2000, resulted in the discovery of information that James N. Dispoto operates an internet website (www.megamix96.com). As of January 28, 2000, he displayed advertisements on his website, offered tee-shirts for sale, and detailed his work experience under the name ``DJ New York.'' During a telephone conversation with Commission staff, James N. Dispoto stated that his full-time occupation is operating his internet radio station, which, according to him, just breaks even. III. DISCUSSION 10. The forfeiture was issued pursuant to Section 503 of the Act,9 and Section 1.80 of the Rules.10 In assessing the forfeiture amount, the Bureau followed the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy Statement''). 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. 11 11. James N. Dispoto admits that he operated an unlicensed FM broadcast station without a license. However, he claims that he cannot pay the $2,000 forfeiture because he has no income or assets. His claims are inconsistent with the information found on his website and the statements that he made to Commission agents in January 2000. James N. Dispoto's statement that his full-time occupation is operating his internet radio station in conjunction with his work experience detailed on the website undermine the financial claims in his petition for reconsideration. Without the financial information associated with his self-professed occupation, we are unable to verify the inability to pay claim raised in his petition for reconsideration. 12. With respect to James N. Dispoto's claim that he ceased operating his unlicensed radio station on June 2, 1998, we note that remedial action to correct a violation, although commendable, will not nullify a forfeiture penalty. See Station KGVL, Inc., 42 FCC 2d 258, 259 (1993). Therefore, after reviewing the record and considering the statutory factors, along with those contained in Forfeiture Policy Statement, we conclude that James N. Dispoto has failed to provide sufficient justification for canceling or reducing the $2,000 forfeiture in this case. IV. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that, pursuant to Section 1.106 of the Rules, James N. Dispoto's petition for reconsideration of the Forfeiture Order, NAL/Acct. No. 915TP0003 IS DENIED. 14. 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.12 Payment may be made by credit card through the Commission's Credit and Debt Management Center at (202) 418-1995, or by mailing a check or similar instrument, payable to the order of the ``Federal Communications Commission,'' to the Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should note NAL/Acct. No. 915TP0003 referenced above. Requests for full payment under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12th Street, S.W., Washington, D.C. 20554.13 15. IT IS FURTHER ORDERED that, a copy of this Order shall be sent by Certified Mail Return Receipt Requested to James N. Dispoto, 4360 S.E. 60th Street, Ocala, Florida. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 47 U.S.C. § 301. 2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 915TP0003, Case # 98TP167 (Compl. & Inf. Bur., Tampa Office, rel. Dec. 10, 1998). 3 James N. Dispoto filed an untimely response with the Commission on February 1, 1999, but the former Compliance and Information Bureau did not receive the response until after release of its February 22, 1999 Forfeiture Order. See note 4, infra. The financial issue that Mr. Dispoto raises in his February 1, 1999 response is similar to the one he raises in the March 10, 1999 response that we are treating as a Petition for Reconsideration. 4 14 FCC Rcd 3347 (Compl. & Inf. Bur. 1999). 5 47 C.F.R. § 1.106. 6 See 47 C.F.R. § 15.239. 7 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 815TP0005, Case # 98TP167 (Compl. & Inf. Bur., Tampa Office, rel. June 11, 1998). 8 Forfeiture Order, NAL/Acct. No. 815TP0005, Case No. 98TP167 (Compl. & Inf. Bur., Tampa Office, rel. Dec. 9, 1998). 9 47 U.S.C. § 503. 10 47 C.F.R. § 1.80. 11 47 U.S.C. § 503(b)(2)(D). 12 47 U.S.C. § 504(a). 13 See 47 C.F.R. § 1.1914.