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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-TP-091
)
Fritzner Simon ) NAL/Acct. No.200432700003
1411 Foxboro Drive )
Brandon, Florida 33511 ) FRN 0009996281
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 11, 2003
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Mr. Fritzner Simon (``Mr.
Simon'') apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000) for willful and repeated
violation of Section 301 of the Communications Act of 1934,
as amended (``Act'').1 Specifically, we find Mr. Simon
apparently liable for operating a radio station on the
frequencies of 102.1 and 87.9 MHz without Commission
authorization.
II. BACKGROUND
2. On March 5, 2003, agents from the Commission's
Tampa Field Office drove an FCC direction finding vehicle to
the Tampa, Florida area and observed an FM radio station
operating on 102.1 MHz. Using direction finding equipment
and techniques, the agents determined that the station was
broadcasting from a room on the second floor of a two story
building located at 1719 Columbus Drive, Tampa, Florida.
The agents took field strength measurements of the station's
signal and determined that the station required a license to
operate.2 A search of the FCC's records showed that no
license had been issued for the operation of an FM broadcast
station at this location.
3. Still on this date, the agents inspected the radio
station. The agents found an FM radio transmitter in
operation. One of two persons present inside the room
identified himself with a photo identification as Mr.
Fritzner Simon. Mr. Simon stated that he operated the radio
station with his brother and that the other person in the
room was visiting from Haiti and had no connection with the
station. The agents hand delivered a written and verbal
warning for unlicensed operation to Mr. Simon. Mr. Simon
agreed to surrender an exciter and the radio transmitter to
the agents.
4. On August 21, 2003, FCC agents conducting routine
monitoring of the FM broadcast band observed a radio station
operating on 87.9 MHz. Using direction finding equipment
and techniques, the agents determined that the station was
broadcasting from a room on the second floor of a residence
located at 4206 Nebraska Avenue, Tampa, Florida. The agents
took field strength measurements of the station's signal and
determined that the field strength was in excess of any low-
powered transmission allowed on any FM frequency.3 Further,
the agents observed that this station operated continuously
for more than an hour.4 The FCC's records showed that no
license had been issued for the operation of an FM broadcast
station at this location on 87.9 MHz. Thus, the radio
station operating on 87.9 MHz from 4206 Nebraska Avenue,
Tampa, Florida was in violation of Section 301 of the Act.
A vehicle in the driveway was registered to Fritzner Simon
and Heinz Simon.
5. On September 10, 2003, FCC agents met with the
owner of the property located at 4206 Nebraska Avenue, Tampa
FL. The FCC agents showed photos of Mr. Fritzner Simon to
the property owner and he identified Mr. Fritzner Simon as
the person using the space at his property to make
recordings.
III. DISCUSSION
6. 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 March 5, 2003, Mr. Simon operated
radio transmitting equipment on the frequency 102.1 MHz and
on August 21, 2003 he once again operated radio transmitting
equipment on the frequency 87.9 MHz without the required
Commission authorization.
7. Based on the evidence before us, we find Mr. Simon
repeatedly5 and willfully6 violated Section 301 of the Act
by operating radio transmission apparatus without a license.
8. Pursuant to Section 1.80(b)(4) of the Rules,7 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.8 Considering the entire
record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,9 and Sections 0.111, 0.311 and
1.80 of the Rules,10 Fritzner Simon is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful and repeated
violation of Section 301 of the Act by operating radio
transmitting equipment on the frequency 102.1 MHz and also
on 87.9 MHz without benefit of the required Commission
authorization.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Fritzner Simon 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. 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. 20554.11
12. 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-
Spectrum Enforcement Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
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. 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 Spectrum
Enforcement 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.
15. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Fritzner Simon, 1411 Foxboro Drive,
Brandon, Florida, 33511.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Field Office, Enforcement
Bureau
Attachment
_________________________
1 47 U.S.C. § 301.
2 Section 15.239 of the Commission's Rules, 47 C.F.R. §
15.239, provides that non-licensed broadcasting in the 88-
108 MHz band is permitted only if the field strength of the
transmissions does not exceed 250 µV/m at three meters.
Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed
low-power radio transmitter by 6,105 times.
3 FM broadcast operation on frequency 87.9 MHz is limited
for use only by licensed noncommercial educational FM
broadcast stations that have been required by the FCC to
change frequency. 47 C.F.R. ' 73.501.
4 Operation of a non-licensed, low-powered transmitter on
frequency 87.9 MHz is restricted to periodic operation and
is generally used for the transmission of a control signal
such as those used with alarm systems, garage door openers,
remote switches, etc. Because operation on this frequency
must be limited in duration, continuous operation of a non-
licensed, low-powered transmitter is not permitted on 87.9
MHz. See 47 C.F.R. ' 15.209 and 15.231.
5 The 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.'' 47
U.S.C. § 312(f)(2).
6 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 (1991).
7 47 C.F.R. § 1.80(b)(4).
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 See 47 C.F.R. § 1.1914.