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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-534
)
Timothy J. Massett ) NAL/Acct. No.200332700012
2753 Downing Street )
Jacksonville, Florida ) FRN 0007965379
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
.
Released: December 11, 2002
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Timothy J. Massett apparently
liable for a forfeiture in the amount of ten thousand
dollars ($10,000) for willful violation of Section 301 of
the Communications Act of 1934, as amended (``Act'').1
Specifically, we find Timothy J. Massett apparently liable
for the operation of an FM broadcast station on frequency
91.5 MHz located at 406 Chelsea Street, in Jacksonville,
Florida, without Commission authorization.
II. BACKGROUND
2. On September 11, 2002, agents from the FCC
Enforcement Bureau's Tampa Field Office (``Tampa Office'')
operating an FCC direction-finding vehicle in the
Jacksonville, Florida, area, investigated a radio broadcast
station on frequency 91.5 MHz. The station transmitted no
identification. Based on direction-finding techniques, the
agents determined that the source of the signal on 91.5 MHz
was a building located at 406 Chelsea Street in
Jacksonville, Florida. A coaxial cable from an FM ground
plane type antenna entered the building. Based on field
strength measurements taken by the agents of the station's
signal, a Commission authorization was required to operate
the station.2 The agents inspected the radio station
accompanied by Mr. Timothy J. Massett, the lessee of the
building. Inside the building, Mr. Massett showed the
agents an FM broadcast transmitter and associated audio
equipment. Mr. Massett stated that he had no license
authorizing operation of the radio station. Mr. Massett
deactivated the transmitter. Mr. Massett admitted that live
bands and disc jockeys operated the station from the
premises and that Mr. Massett collected rent for the
operation of the radio station. Mr. Massett also admitted
that he reset the CD player when the music stopped just
prior to the agents' inspection.
III. DISCUSSION
3. Section 301 of the Act sets forth generally that
no person shall use or operate any apparatus for the
transmission of energy of communications or signals by radio
within the United States except under and in accordance with
the Act and with a license. On September 11, 2002, Timothy
J. Massett operated radio transmitting equipment on the
frequency 91.5 MHz without benefit of the required
Commission authorization.
4. Based on the evidence before us, we find that on
September 11, 2002, Timothy J. Massett willfully3 violated
Section 301 of the Act by operating radio transmission
apparatus without a license.
5. Pursuant to Section 1.80(b)(4) of the Rules,4 the
base forfeiture amount for operating a radio station without
a Commission 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)(D) of
the Act, which include 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.5 Considering the entire record and applying
the factors listed above, this case warrants a $10,000
forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 Timothy J. Massett is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 301 the Act by operating a radio station without
Commission authorization.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Timothy J. Massett SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.8
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. 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 documentation
submitted.
11. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Timothy J. Massett, 2753 Downing
Street, Jacksonville, Florida 32205.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Field Office, Enforcement
Bureau
Attachment
_________________________
1 47 U.S.C. § 301.
2 See 47 C.F.R. § 15.239(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective
of any intent to violate any provision of this Act....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.