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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-04-TP-029
)
Wilner Simon ) NAL/Acct. No.200432700016
110 Triangle Street )
Port Charlotte, Florida ) FRN 0010511020
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 20, 2004
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Wilner Simon apparently liable
for 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 the
operation of a radio station without Commission
authorization.
II. BACKGROUND
2. On February 20, 2003, agents from the FCC
Enforcement Bureau's Tampa Field Office (``Tampa Office'')
observed an FM radio station operating on the frequency
107.5 MHz in the Port Charlotte, Florida area. Commission
records showed no license issued for a station on this
frequency in the Port Charlotte area. Using direction-
finding techniques, the agents determined the source of the
signal to be a residence located at 110 Triangle Street,
Port Charlotte, Florida. The agents took field strength
measurements of the station's signal and determined that the
station required a license to operate.2 The agents
inspected the radio station and interviewed the operator,
Wilner Simon. The agents orally warned Simon about the
unlicensed radio operation. Simon relinquished the
unlicensed radio equipment to the agents.
3. On January 8, 2004, two Tampa Office agents in the
Port Charlotte, Florida area observed a signal on the
frequency 87.6 MHz. Using direction-finding techniques, the
agents determined the source of the signal to be a residence
at 110 Triangle Street, Port Charlotte, Florida. The agents
could detect the signal at a distance of more than three
miles from the source. Commission records showed no license
issued for a station on this frequency in the Port Charlotte
area.
4. On January 13, 2004, using direction-finding
techniques, two Tampa Office agents again detected a signal
on the frequency 87.6 MHz. Using direction-finding
techniques, the agents determined the source of the signal
to be a residence located at 110 Triangle Street, Port
Charlotte, Florida. A vertical dipole antenna was mounted
on a tower attached to the residence. No audio or
modulation could be detected on the signal's main carrier,
but the agents observed that the signal broadcast a
subcarrier, known also as Subsidiary Communications
Authority, which is a separate audio or data channel
transmitted along with the main audio signal over a
broadcast station signal. Based on the field strength
measurements taken by the agents, the station required a
Commission authorization to operate.3 A vehicle parked in
the driveway was registered to Simon's business.
5. Later on January 13, 2004, the Tampa Office agents
attempted an inspection of the radio station broadcasting on
87.6 MHz at 110 Triangle Street, Port Charlotte, Florida.
No one answered the agents' knocks on the door of the
residence. However, the station broadcasting from this
location ceased broadcasting while the agents knocked on the
door. Two vehicles were parked at the residence: one was
the same vehicle seen earlier in the day and registered to
Simon's business, and another vehicle registered to Simon.
6. On January 15, 2004, the Tampa Office agents
interviewed Mr. Wilner Simon, the owner of the residence at
110 Triangle Street, Port Charlotte, Florida. Mr. Simon
admitted to operating a broadcast station utilizing a
subcarrier transmission from his residence on January 13,
2004 without an FCC license. Mr. Simon stated that his
broadcasts were providing a service to the community. Mr.
Simon also stated that he did not intend to cease
broadcasting despite the agents warnings of possible civil
and criminal enforcement sanctions for unlicensed radio
operation.
III. DISCUSSION
7. Section 301 of the Act requires 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 January 8 and 13, 2004, Mr. Simon
operated radio transmitting equipment on the frequency 87.6
MHz without the required Commission authorization.
8. Based on the evidence before us, we find that on
January 8 and 13, 2004, Mr. Simon willfully4 and repeatedly5
violated Section 301 of the Act by operating radio
transmission apparatus without a license.
9. Pursuant to Section 1.80(b) (4) of the Rules,6 the
base forfeiture amount for operating a radio station 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.7 Considering the entire
record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 Wilner 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 the Act by operating radio transmitting
equipment on the frequency 87.6 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, Wilner 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. 20554.10
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 Wilner Simon, 110 Triangle Street, Port
Charlotte, Florida 33954.
IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent
by regular mail and Certified Mail Return Receipt Requested
to Wilner Simon, 18265 Poston Ave, Port Charlotte, FL 33948.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
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.
3 Section 15.209(a) of the Commission's Rules, 47 C.F.R. §
15.209(a), provides that non-licensed broadcasting in the
30-88 MHz band is permitted only if the field strength of
the transmissions does not exceed 100 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 24,672 times.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally 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).
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 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.