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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) EB-05-BS-077
Gary Toussaint ) NAL/Acct.No: 200632260003
Mattapan, MA ) FRN No. 0014744007
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 8, 2006
By the District Director, Boston Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Gary Toussaint ("Toussaint") apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
102.9 MHz in Mattapan, MA. We conclude, pursuant to Section 503(b) of
Act, that Toussaint is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 1, 2005, the Boston Office of the FCC's Enforcement Bureau
received a complaint of an illegal broadcast station operating on
102.9 MHz in the Dorchester/Mattapan, MA area.
3. On August 10, 2005, agents in the Boston Office monitored signals on
102.9 MHz in the Dorchester/Mattapan, MA area and, using mobile
direction finding techniques, determined the source of the signal to
be 452 Norfolk Street, Mattapan, MA. The agents observed two FM
broadcast antennas mounted on the roof of the building and a cable
going from one of the antennas to a window on the second floor of the
building. The agents took field strength measurements and determined
that the signals being broadcast exceeded the limits for operation
under Part 15 of the Commission's rules ("Rules") and therefore the
station required a license. FCC records showed that no licenses had
been issued for the operation of an FM broadcast station on 102.9 MHz
at this location.
4. On that same day, after completing the field strength measurements,
the agents conducted an inspection of the station while the station
was in operation. The inspection was conducted with a man identified
from his driver's license as Toussaint. During the inspection, the
agents observed radio station studio equipment, including a 500 watt
transmitter and associated audio equipment. At the completion of the
inspection, the agents presented Toussaint with a written Notice of
Unlicensed Radio Operation, which advised Toussaint that he must
discontinue the unlicensed operation immediately and outlined the
possible penalties for continued operation of an unlicensed station.
5. Agents from the Boston Office again monitored the frequency 102.9 MHz
in Mattapan, MA on August 23, 2005 and, using mobile direction finding
techniques, determined the source of the signal to be 452 Norfolk
Street, Mattapan, MA. Based on field strength measurements of the
signal taken by the agents, the station still exceeded the limits for
operation under Part 15 of the Rules and therefore still required a
license.
6. On October 7, 2005, the Boston Office sent a Warning Letter, via
regular and certified mail, return receipt requested, to Gary
Toussaint at the station's address as well as the address on
Toussaint's driver's license. The letter again warned Toussaint that
he must discontinue the unlicensed operation immediately and outlined
the potential penalties for continued operation of an unlicensed
station. To date, the Boston Office has not received a reply from
Toussaint.
7. The agents from the Boston Office subsequently discovered a website at
[1]www.choice1029.com for a radio station operating on 102.9 MHz and
identified as "Choice FM." The contact information posted on the
website indicated that the station's address is 452 Norfolk Street,
Mattapan, MA.
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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
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 Rules and with a license issued by the Commission. On August 10,
2005 and August 23, 2005 Toussaint operated radio transmission
equipment at 452 Norfolk St., Mattapan, MA without the required
Commission authorization. Toussaint received written notice that his
operation of the station was unauthorized on August 10, 2005, and
October 7, 2005. Because Toussaint continued to operate the station
even after receiving a written warning, his violation is willful.
Toussaint's violation occurred on more than one day, therefore, it is
repeated. Based on the evidence before us, we find that Toussaint
apparently willfully and repeatedly violated SectionS 301 of the Act
by operating an FM radio transmitter without a license on 102.9 MHz in
Mattapan, MA.
10. 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. 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Toussaint
is apparently liable for a ($10,000) forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Gary Toussaint is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Sections 301 of the
Rules.
12. 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 for Forfeiture, Gary Toussaint SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Boston Office, 1
Batterymarch Park, Quincy, MA, 02169 and must include the NAL/Acct.
No. referenced in the caption.
15. 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.
16. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
17. 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 Gary Toussaint at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director,
Boston Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 301
47 U.S.C. S 503(b).
Section 15.209(a) of the Rules authorizes operation of low power radio
equipment without a license if the strength of the signal does not exceed
the maximum signal strength at a specified distance. See 47 C.F.R. S
15.209(a). The measurements taken on August 10, 2005 showed that the field
strength of the station's signal was 79,332 times the permissible level
for a non-licensed low-power radio transmitter.
The measurements taken on August 23, 2005 showed that the field strength
of the station's signal was 9,018 times the permissible level for a
non-licensed low-power radio transmitter.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission
References
Visible links
1. http://www.choice1029.com/