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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-650
Daniel Clephar ) NAL/Acct. No.200332700020
4816 Tam Drive )
Orlando, Florida ) FRN 0008369522
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 14, 2003
By the Enforcement Bureau, Tampa Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Daniel Clephar (``Mr.
Clephar'') 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 Mr. Clephar apparently
liable for operating a radio station on the frequency of
92.7 MHz in Orlando, Florida without Commission
2. On December 6, 2002, two agents from the
Commission's Tampa Field Office, using a mobile direction
finding vehicle in the Orlando, Florida area, detected an FM
radio station operating on 92.7 MHz. The voice on the
broadcast identified the station as ``Radio Maximo.'' A
search of Commission records showed that there was no FM
radio station licensed on 92.7 MHz in the Orlando, Florida
area. The agents traced the station's signal to the
residence at 4816 Tam Drive, Orlando, Florida. An antenna
was mounted on a pole attached to a tree in the back yard of
the residence. The agents determined through field strength
measurements that the station's field strength was 5,599
times greater than the permissible level for a non-licensed
low-power radio transmitter2 and that, therefore, the
station required a license to operate. Immediately
thereafter, while the station continued to operate, the
agents inspected the radio station. A man identified as
Daniel Clephar answered the door of the residence. Mr.
Clephar led the agents through the residence to the garage.
Coaxial cable connected to the antenna in the back yard
entered the garage and was connected to an FM broadcast
transmitter located inside the garage. The transmitter was
tuned to 92.7 MHz. The agents recognized Mr. Clephar's
voice as the same one they heard identify the station on the
air as ``Radio Maximo.'' A search of Florida Division of
Corporations records showed a corporation by the name ``D &
C Construction and Stucco of Orlando, Inc.'' with Daniel
Clephar as the officer/director and 4816 Tam Drive, Orlando,
Florida, as the corporation's principal address.
3. Section 301 of the Act provides 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 December 6, 2002, Daniel Clephar
operated radio transmitting equipment on the frequency 92.7
MHz without the required Commission authorization.
4. Based on the evidence before us, we find Mr.
Clephar 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 operation without an instrument
of authorization for the service 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 Daniel Clephar 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 of the Act by operating radio transmitting
equipment on the frequency 92.7 MHz without benefit of the
required 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, Daniel Clephar SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
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
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 Daniel Clephar, 4816 Tam Drive,
Orlando, FL, 32808.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Field Office, Enforcement
1 47 U.S.C. § 301.
2 See 47 C.F.R. § 15.239.
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under 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 4387-88
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.