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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-NY-493
)
Rev. Dr. Philius Nicholas ) NAL/Acct. No.
200232380001
Brooklyn, NY )
) FRN # 0006XXXX-0775XXXX-
23XX
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 10XX,
2002
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Rev. Dr. Philius Nicholas (``Dr.
Nicholas'') has apparently violated Section 301 of the
Communications Act of 1934 (``Act''),1 as amended, by operating
an unlicensed radio transmitter on frequency 88.1 MHz. We
conclude that Rev. Dr. Philius Nicholas is apparently liable for
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On September 12, 2000, in connection with an
investigation of the operation of unlicensed FM broadcast
stations in Brooklyn, New York, Commission agents observed
unauthorized radio broadcast on 88.1 MHz. There was no evidence
of a Commission authorization for this operation in Brooklyn, NY.
3. Commission agents made a positive identification
ofpositively identified the source of the unauthorized
transmissions to the Lighthouse Baptist Church, 1488 New York
Avenue, Brooklyn, NY, 11210. The agents requested and were given
permission to inspect the radio station by Dr. Nicholas. The
agents observed the radio transmitter, a NiCom FM Exciter, and
other equipment that werewas associated with the station
operation, and handed delivered a Warning Letter to Dr. Nicholas
a Warning Letter for the operation of the unlicensed station.
4. On September 13, 2000, the New York Office sent a
Warning Letter, for unlicensed operation, by First Class and
Certified Mail Return Receipt Requested to Dr. Nicholas.
5. On November 16, 2001, Commission agents observed radio
broadcast on 88.1 MHz, and made a positive identification of the
source of the unauthorized transmissions to Lighthouse Baptist
Church, 1488 New York Avenue, Brooklyn, NY, 11210.
6. On November 17, 2001, Commission agents observed radio
broadcast on 88.1 MHz, and made a positive identification
ofpositively identified the source of the unauthorized
transmissions to the Lighthouse Baptist Church, 1488 New York
Avenue, Brooklyn, NY, 11210.
7. The agents requested and were given permission to
inspect the radio station by Jean Gilles, the operator on duty.
The agents observed the radio transmitter, a NiCom FM Exciter,
and other equipment that were was associated with the station
operation. In response to questions by the agents, Mr. Gilles
told the agents that he was operating the station at the
direction of on behalf of Dr. Nicholas.
III. DISCUSSION
8. Section 301 of the Act sets forth generally 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.
9. Based on the evidence before us, we find that on
September 12, 2000, November 16, 2001, and November 17, 2001,
Rev. Dr. Philius Nicholas was responsible for the operation of
radio transmission equipment on 88.1 MHz, without a Commission
authorization in willful2 and repeatedly3 violation of Section
301 of the Act.
10. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for the violation cited in this
notice is $10,000.4 Section 503(b)(2)(D) of the Act requires us
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 other such matters as justice may require.''5
Considering After considering the entire record and applying the
statutory factors listed above, this case warrantswe find that a
$10,000 forfeiture in the amount of $10,000 is appropriate.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, Rev. Dr. Philius Nicholas is hereby NOTIFIED of his
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully 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, Rev. Dr. Philius Nicholas
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. 200232380001 and FRN # 0006XXXX-0775XXXX-23XX.
14. Any response to this NAL 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. 200232380001.
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, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Rev. Dr. Philius Nicholas, 1488 New York Avenue,
Brooklyn, NY 11210.
FEDERAL COMMUNICATIONS
COMMISSION
Alexander Zimny
District Director
New York Office
_________________________
1 47 U.S.C. § 301.
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies 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).
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 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 and 1.80.
8 See 47 C.F.R. § 1.1914.