Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-279
)
Emmanuel Frederic ) NAL/Acct. No.
200332380012
Brooklyn, NY )
) FRN: 0007-9945-02
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 23,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Emmanuel Frederic has apparently violated
Section 301 of the Communications Act of 1934 (``Act''),1 as
amended, by operating an unlicensed radio transmitter on
frequencies of 89.7 and 87.9 MHz. We conclude that Emmanuel
Frederic is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On November 1, 2002, Commission agents investigated the
operation of unlicensed FM broadcast stations in Brooklyn, NY.
Using a mobile direction-finding vehicle, the agents observed
unauthorized radio broadcast on 89.7 MHz, and positively
identified the source of the unauthorized transmissions to 1024
Montgomery Street, Brooklyn, NY, 11213. There was no evidence of
a Commission authorization for this operation in Brooklyn, NY.
3. On November 2, 2002, a Commission agent returned to
1024 Montgomery Street, Brooklyn, NY, and observed a vertical
antenna on the roof of the building, from which a coaxial cable
ran into Apartment 3K of the building. The agent then conducted
a station inspection and determined that Emmanuel Frederic, who
lives in Apartment 3K of the building, was the operator of the
unlicensed station. Beginning in October 2000 to November 2001,
Commission agents, on many occasions, had positively observed
unauthorized radio broadcast of Emmanuel Frederic from 1024
Montgomery Street, Apartment 3K, Brooklyn, NY, and other
locations in Brooklyn, NY.
4. On November 4, 2002, Emmanuel Frederic, in a telephone
conversation with a Commission agent, acknowledged the operation
of an unlicensed radio station located at 1024 Montgomery Street,
Apartment 3K, Brooklyn, NY.
5. On December 6, 2002, a Commission agent investigated
the operation of unlicensed FM broadcast stations in Brooklyn,
NY. Using a mobile direction finding vehicle, the agent observed
unauthorized radio broadcast on 87.9 MHz, and positively
identified the source of the unauthorized transmissions to 1024
Montgomery Street, Brooklyn, NY, 11213. There was no evidence of
a Commission authorization for this operation in Brooklyn, NY.
III. DISCUSSION
6. 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. A review of
Commission's records showed that there was no evidence of a
Commission authorization to operate this station on 89.7 or 87.9
MHz in Brooklyn, NY.
7. Based on the evidence before us, we find that, Emmanuel
Frederic was responsible for the operation of radio transmitting
equipment on 89.7 MHz on November 1, 2002, and on 87.9 MHz on
December 6, 2002, in willful2 and repeated3 violation of Section
301 of the Act.
8. 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) (``Forfeiture Policy Statement'')4,
sets the base forfeiture amount for operation without an
instrument of authorization at $10,000. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act,5
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. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a ten thousand dollar ($10,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules7, Emmanuel Frederic is hereby NOTIFIED of
their APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully violating Section 301 of
the Act.
10. 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, Emmanuel Frederic SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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. 200332380012 and FRN: 0007-9945-02.
12. 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. 200332380012.
13. 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.
14. 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
15. 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 and 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.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Emmanuel Frederic, 1024 Montgomery Street, Apartment
3K, Brooklyn, NY 11213.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A: Condensed List of Small Entities
_________________________
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.
447 C.F.R. § 1.80.
5
47 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.