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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Dr. John G. Pierre ) File No. EB-00-NY-003
2247 Church Avenue )
Brooklyn, New York ) NAL/Acct. No. 20013238-
0001
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November
15, 2000
By the District Director, New York Office, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Dr. John G. Pierre, (``Dr. Pierre'') has
apparently violated Section 301 of the Communications Act of 1934
(``Act'')1, as amended, by operating an unlicensed radio
transmitter on frequencies of 91.3 and 102.9 MHz. We conclude
that Dr. Pierre is apparently liable for a forfeiture in the
amount of eleven thousand dollars ($11,000).
II. Background
2. On November 5, 1998, in connection with complaints of
unauthorized radio broadcast in Brooklyn, New York, Commission
agents using a mobile direction finding vehicle (``MDF'') located
the source of radio transmissions on 91.3 MHz to 2247 Church
Avenue, Brooklyn, New York ( ``2247 Church Avenue''). On
November 17, 1998, Commission agents interviewed Dr. Pierre at
his business address, 2247 Church Avenue, concerning the
unlicensed operation. On November 18, 1998, the New York
District Office sent a Warning Letter, for unlicensed operation,
by First Class and Certified Mail Return Receipt Requested to Dr.
Pierre.
3. On March 2, 1999, Commission agents hand-delivered a
Warning Letter to Dr. Pierre at 2247 Church Avenue, for continued
unlicensed operation on 91.3 MHz. On December 29, 1999, and
February 24, 2000, a Commission agent using a MDF vehicle
monitored the frequency 91.3 MHz in Brooklyn, NY, in connection
with complaints of unlicensed radio broadcasts in Brooklyn, New
York. The agent traced radio transmissions on 91.3 MHz to 2247
Church Avenue.
4. On June 20, 2000, Commission agents assisted U. S.
Marshals during an execution of a warrant to seize radio-
transmitting equipment at 2247 Church Avenue, Brooklyn, New York.
Dr. Pierre was present during the execution of the warrant.
5. On June 28, 2000, a Commission agent using a MDF
vehicle located the source of transmissions on 91.3 MHz to the
First Grace Community Church, located at 3813 Church Avenue,
Brooklyn, New York. A sign outside shows John G. Pierre as the
pastor. On July 12, 2000, the New York District Office sent a
Warning letter by First Class and Certified Mail Return Receipt
Requested, to the church, concerning the unlicensed operation on
91.3 MHz.
6. On August 22, 2000, a Commission agent using a MDF
vehicle located the source of transmissions on 102.9 MHz to 55
Linden Boulevard, Brooklyn, New York (``55 Linden''). A follow-up
investigation by Commission agents found that Dr. Pierre had
rented a room in an apartment at 55 Linden, where the radio
equipment was installed.
7. On September 6, 2000, and September 7, 2000, a
Commission agent using a MDF vehicle located the source of
transmissions on 102.9 MHz to 2247 Church Avenue, Brooklyn, New
York, Dr. Pierre's business address.
8. On September 14, 2000, September 16, 2000, and
September 17, 2000, a Commission agent using a MDF vehicle
located the source of transmissions on 102.9 MHz to 451 Kingston
Avenue, Brooklyn, New York. The station's programs included
advertisement and promotion of Dr. Pierre's business located at
2247 Church Avenue, Brooklyn, New York.
III. Discussion
9. Dr. Pierre has violated Section 301 of the Act by
operating an FM broadcast station on a frequency of 91.3 MHz, on
December 29, 1999, February 24, 2000, and June 28, 2000; and on
102.9 MHz, on August 22, 2000, September 6, 2000, September 7,
2000, September 14, 2000, September 16, 2000, and September 17,
2000, without a license or other authorization issued by the
Commission.
10. Based on the evidence before us, we find that Dr.
Pierre willfully2 and repeatedly3 violated Section 90.403(e) of
the Rules. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Policy Statement''), sets the
base amount for operation of an unlicensed transmitter at eleven
thousand dollars ($11,000). 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 Act4, that 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. Applying the Policy Statement and
statutory factors to the instant case, we believe that a monetary
forfeiture of eleven thousand dollars ($11,000) is warranted for
the violation.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act5 and Sections 0.111, 0.311 and 1.80 of the
Rules6, Dr. Pierre is hereby NOTIFIED of his APPARENT LIABILITY
FOR A FORFEITURE in the amount of eleven thousand dollars
($11,000) for willfully and repeatedly violating Section 301 of
the Act.
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Dr. Pierre SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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. 20013238-0001.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 20013238-0001.
15. 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.
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.7
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Dr. John G. Pierre, 2247 Church Avenue, Brooklyn,
New York 11226.
FEDERAL COMMUNICATIONS
COMMISSION
Alexander Zimny
District Director
New York Office
_________________________
1 47 U.S.C. § 301.
2 Section 312(f)(1), which also applies to Section 503(b),
provides: [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 provisions of the Act or any rule or
regulation of the Commission authorized by this Act or by a
treaty ratified by the United States. See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 See 47 C.F.R. § 1.1914.