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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-05-NY-290
Shawn Deroux ) NAL/Acct. No: 200632380008
Bronx, NY ) FRN: 0014159255
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 8, 2006
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 Shawn Deroux ("Deroux") apparently willfully and repeatedly
violated Sections 301 and 303(n) of the Communications Act of 1934, as
amended ("Act"), by operating an unlicensed radio transmitter on the
frequency 87.9 MHz in Bronx, NY and failing to permit a station
inspection. We conclude, pursuant to Section 503(b) of Act, that
Deroux is apparently liable for a forfeiture in the amount of
seventeen thousand dollars ($17,000).
II. BACKGROUND
2. On September 23, 2005, the New York Office of the FCC's Enforcement
Bureau received a complaint of an illegal broadcast station operating
on 87.9 MHz in Bronx, NY.
3. On October 6, 2005, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 87.9 MHz in Bronx,
NY. The agents observed a radio broadcast on 87.9 MHz and identified
the source of the transmissions as an FM broadcasting antenna on the
roof of 11 West 172 Street, Bronx, NY 10452. 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 required a license. The agent searched
Commission databases and found no evidence of a Commission
authorization for operation on 87.9 MHz in Bronx, NY.
4. On that same day, after completing the field strength measurements,
the agents went to the roof of 11 West 172 Street, Bronx, NY 10452.
The agents observed that the antenna cable went from the roof to a
basement window next door at 11A West 172 Street, Bronx, NY. While on
the roof, the agents observed a man in a green shirt constructing an
FM antenna on a long pole in the backyard of 11A West 172 Street. When
the agents descended from the roof and entered the lobby of the
building at 11 West 172 Street, they were met by the man in the green
shirt, who later was identified as Deroux. Deroux admitted operating
the unlicensed radio station and agreed to shut down the station. He
refused, however, to allow agents to inspect the station. The agents
orally warned Mr. Deroux of the consequences of operating an
unlicensed broadcast station and failing to allow an inspection. Prior
to leaving the area, the agents monitored 87.9 MHz and noted that the
station went off the air.
5. On October 8, 2005, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 87.9 MHz in Bronx,
NY. The agents observed a radio broadcast on 87.9 MHz, and identified
the source of the transmissions as an FM broadcasting antenna in the
back yard of 11A West 172 Street , Bronx, NY 10452. The agents took
field strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of the Rules
and therefore required a license. The agents searched Commission
databases and found no evidence of a Commission authorization for
operation on 87.9 MHz in Bronx, New York.
6. After completing the field strength measurements on October 8, 2005,
the agents went to 11A West 172 Street, Bronx, NY 10452 and attempted
a station inspection. A man living there identified the operator of
the station as "Shawn" and agreed to contact him by telephone. Shortly
thereafter, Deroux came out of the basement apartment at 11A West 172
Street and again refused to allow the agents to inspect the station.
The agents orally informed Deroux that he did not have authority to
operate the station and advised him of the penalties for unlicensed
operation. Prior to leaving the area, the agents monitored 87.9 MHz
and noted that the station went off the air.
7. On October 27, 2005, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 87.9 MHz in Bronx,
NY. The agents observed a radio broadcast on 87.9 MHz, and identified
the source of the transmissions as an FM broadcasting antenna on a
building at 305 East 170 Street, Bronx, NY 10456. The agents traced
the cable to the basement of 305 East 170 Street, Bronx, NY 10456. 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 required a
license. The agents searched Commission databases and found no
evidence of a Commission authorization for operation on 87.9 MHz in
Bronx, NY.
8. After completing the field strength measurements on October 27, 2005,
the agents went to
305 East 170 Street, Bronx, NY 10456 and attempted a station inspection.
The owner of the building, Dr. Mark Escoffery-Bey, admitted that he
allowed his friend Shawn to install and operate a radio station on 87.9
MHz in his building. Dr. Escoffery-Bey refused to allow agents to inspect
the station.
III. DISCUSSION
9. 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. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
10. Section 301 of the Act provides 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. On October 6, 2005, and October 8, 2005, Deroux
operated radio transmission equipment at 11A West 172 Street, Bronx,
NY without the required Commission authorization. Deroux also operated
radio transmission equipment at 305 West 170 Street, Bronx, NY without
the required Commission authorization on October 27, 2005. Deroux was
orally warned by agents on October 6 and October 8, 2005 that
operation of his station was unauthorized and must cease immediately.
Because Deroux continued to operate his station even after being
warned, his violation was willful. Deroux's violation occurred on more
than one day, therefore, it was repeated.
11. Section 303(n) of the Act states that the Commission has the authority
to inspect all radio installations associated with stations required
to be licensed to ascertain whether, in operation, they conform to the
requirements of the rules and regulations of the Commission. On
October 6, 2005, agents orally warned Deroux that failure to allow an
inspection of his station could subject him to enforcement action.
Notwithstanding this warning, Deroux refused to allow agents to
inspect the station, therefore, his violation was willful. Because
Deroux failed to permit agents to inspect the station on October 6 and
October 8, 2005, the violation was repeated.
12. Based on the evidence before us, we find that Shawn Deroux apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment on 87.9 MHz in Bronx, NY on October 6,
October 8, and October 27, 2005 without a Commission authorization and
willfully and repeatedly violated Section 303(n) of the Act by failing
to allow an inspection of his station on October 6 and October 8,
2005.
13. 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 and the base forfeiture amount for failure to
permit inspection is $7,000. 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 Shawn
Deroux is apparently liable for a $17,000 forfeiture.
IV. ORDERING CLAUSES
14. 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, Shawn Deroux is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of seventeen
thousand dollars ($17,000) for violations of Sections 301 and 303(n)
of the Act.
15. 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, Shawn Deroux SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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.
17. 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, and must include the
NAL/Acct. No. referenced in the caption.
18. 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.
19. 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.
20. 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 Shawn Deroux at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. SS 301, 303(n).
47 U.S.C. S 503(b).
Section 15.209 of the Rules provides that non-licensed broadcasting in the
30-88 MHz band is permitted only if the field strength of the transmission
does not exceed 100 mV/m at three meters. 47 C.F.R. S 15.209. Measurements
showed that the field strength of the station's signal exceeded the
permissible level for a non-licensed Part 15 transmitter.
Deroux initially identified himself as Shawn Sadler and provided an
address of 615 Main Street, Stroudsburg, PA 18360. Agents subsequently
identified him as Shawn Deroux from his car's license plate, which was
registered to a Shawn Deroux at 615 Main Street, Stroudsburg, PA.
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."
47 U.S.C. S 303(n).
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. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 47 U.S.C. SS
301, 303(n).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission