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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-04-NY-086
)
Jean L. Senatus ) NAL/Acct. No: 200532380002
)
Spring Valley, NY ) FRN: 0010 9802 90
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November
8, 2004
By the District Director, New York Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Jean L. Senatus apparently willfully and
repeatedly violated Section 301 of the Communications Act of
1934, as amended (``Act''),1 by operating an unlicensed radio
transmitter on the frequency 96.1 MHz. We conclude, pursuant
to Section 503(b) of Act,2 that Jean L. Senatus is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On April 2, 2004, the FCC New York Office received a
complaint from an FCC licensed radio station of interference
from an illegal broadcast station operating on the frequency
96.1 MHz in Spring Valley, New York. The licensed station
operates on the frequency 96.3 MHz in New York, New York.
3. On April 7, 2004, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 96.1 MHz in
Spring Valley, New York. The agent observed a radio broadcast
on 96.1 MHz, and identified the source of the transmissions as
an FM broadcasting antenna on an office building at 52 South
Main Street, Spring Valley, New York 10977. The agent searched
Commission databases and found no evidence of a Commission
authorization for operation on 96.1 MHz in Spring Valley, New
York.
4. On April 17, 2004, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 96.1 MHz in
Spring Valley, New York. The agents again observed a radio
station broadcasting on 96.1 MHz and determined that the
station was operating from 52 South Main Street, Spring Valley,
New York. The agents observed an FM broadcast antenna on the
roof of the building, entered the building, and heard the audio
being broadcast on 96.1 MHz coming from behind one of the doors
on the second floor.
5. The agents knocked on the door and were allowed entry
into the office space where the radio station was in operation
and a group of five men was present. The office space was
empty except for the radio transmitting equipment. Agents
observed studio equipment, an RF power amplifier, and an
antenna cable going into an FM transmitter. In response to
questions from the agents about the operation of the radio
station, one of the men, identified from a driver's license as
Jean L. Senatus, assumed responsibility for operation of the
station. Mr. Senatus also stated that he did not know the name
of the lessee of the office space.
6. On April 21, 2004, the New York Office sent a Warning
Letter, by First Class Mail and Certified Mail, Return Receipt
Requested, to Jean L. Senatus for unlicensed operation on the
frequency 96.1 MHz. On April 29, 2004, the New York Office
received a reply to the Warning Letter from Jean L. Senatus.
Mr. Senatus admitted to being present during the operation of
the station. He stated, however, that he did not own the
station and that he was not aware that a license was required
to operate a radio station. Mr. Senatus further stated that
station operations ceased immediately upon receipt of the
warning letter from the FCC.
7. On May 3, 2004, a Commission agent spoke to the owner
of 52 South Main Street, Spring Valley, New York, who
identified Jean L. Senatus as the lessee of the second floor
office space inspected by the agents. The building owner told
the agent that he was aware of the antenna on the roof of his
building, but that Mr. Senatus told him that the antenna on the
roof was for a low power FM radio station. The lease agreement
between Jean L. Senatus and the owner of 52 South Main Street,
Spring Valley, New York, provides that Mr. Senatus was to
occupy the office space on the second floor to conduct his
business as a producer of a television show.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful"
as used in Section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed
knowingly.3 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.4
9. Section 301 of the Act states 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. As described above,
agents determined that a radio station broadcasting on 96.1 MHz
operated from 52 South Main Street in Spring Valley, New York
on April 7, 2004 and April 17, 2004 without a license. When
agents inspected the station during its operation on April 17,
2004, Mr. Senatus assumed responsibility for the station's
operation. The fact that Mr. Senatus does not ``own'' the
station is inapposite. Section 301 of the Act provides that
``no person shall use or operate'' radio transmission equipment
without a valid Commission authorization. We do not need to
find that an individual or entity owns the station in order to
find that there has been a violation of Section 301 of the Act.
We therefore find that Mr. Senatus willfully violated Section
301 of the Act by operating radio transmission equipment
without a license on 96.1 MHz.
10. The assertion by Mr. Senatus that he did not know
that he needed a license does not negate the willfulness of the
violation. Section 312(f)(1) of the Act, 47 USC § 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,' ... means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act or any rule or regulation of the
Commission authorized by this Act ...." Thus, even if Mr.
Senatus did not intend to violate Section 301 of the Act, he
acted willfully by deliberately operating the station.
Similarly, the fact that Mr. Senatus ceased operations after
receiving the Warning Letter is not a mitigating factor. The
FCC expects that unlicensed radio station operations will cease
immediately upon notification of a violation.
11. Based on the evidence before us, we find that Jean
L. Senatus willfully and repeatedly violated Section 301 of the
Act by operating radio transmission equipment on 96.1 MHz on
April 7, 2004, and April 17, 2004, without a Commission
authorization.
12. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amount for operation without an instrument of authorization is
$10,000.5 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 violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.6 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Jean L. Senatus is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violations of Section 301 of the Act.7
14. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules, within thirty (30) days of the
release date of this Notice of Apparent Liability for
Forfeiture, Jean L. Senatus SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, New York Office, 201 Varick Street, Suite 1151, New
York, NY 10014, within thirty (30) days from the release date
of this Notice of Apparent Liability for Forfeiture and must
include the NAL/Acct. No. referenced in the caption.
17. 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.
18. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.8
19. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Jean
Senatus, 103 W. Eckerson Road, Spring Valley, NY 10977.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
247 U.S.C. § 503(b).
3Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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.''
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
647 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. §§ 0.111, and 0.311.
8See 47 C.F.R. § 1.1914.