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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File Number: EB-06-NY-006
)
Elroy Simpson NAL/Acct. No: 200732380002
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Brooklyn, NY FRN: 0015 6596 83
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)
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 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 Elroy Simpson 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 102.3 MHz
in Brooklyn, NY. We conclude, pursuant to Section 503(b) of the Act,
that Elroy Simpson is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. On January 12, 2006, in response to an interference complaint,
Commission agents, using a mobile direction-finding vehicle, monitored
the frequency 102.3 MHz in Brooklyn, NY. The agents observed a radio
station broadcasting on 102.3 MHz and determined that the station was
operating from an apartment building at 395 Ocean Avenue, Brooklyn,
New York, 11226. The agents subsequently 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. An agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 102.3 MHz in Brooklyn, New York.
3. On January 13, 2006, Commission agents returned to 395 Ocean Avenue in
Brooklyn, New York, and along with the building superintendent
observed an FM broadcast antenna on the roof and a coaxial cable
coming out of the window of Apartment 4P that, at the time, was not
connected to the antenna on the roof. Agents contacted the management
of 395 Ocean Avenue who identified the tenant in Apartment 4P as Elroy
Simpson. Agents knocked on the door of Apartment 4P, but no one
answered.
4. On February 14, 2006, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") addressed to Elroy Simpson at 395 Ocean Avenue,
Apartment 4P, Brooklyn, New York 11226. The NOUO warned Simpson that
operation of the unlicensed radio station on 102.3 MHz violated
Section 301 of the Act and outlined the potential penalties for such a
violation, including seizure of the equipment, fines and imprisonment.
The NOUO also directed Simpson to terminate operation of the
unlicensed station immediately and provided Simpson ten days to reply.
Simpson did not reply. The NOUO sent via certified mail was later
returned to the New York Office by the U.S. Postal Service as
undeliverable. The NOUO sent via regular mail was not returned to the
New York Office.
5. On May 6, 2006, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 102.3 MHz in Brooklyn, NY. The agents
again observed a radio station broadcasting on 102.3 MHz and
determined that the station was operating from 395 Ocean Avenue in
Brooklyn, New York. Agents heard the station announcer identify the
station as "102.3 Red Hot FM." The agents subsequently 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. An agent searched Commission databases
and found no evidence of a Commission authorization for this operation
on 102.3 MHz in Brooklyn, New York.
6. On July 15, 2006, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 102.3 MHz in Brooklyn, NY. The agents
again observed a radio station broadcasting on 102.3 MHz and
determined that the station was operating from 395 Ocean Avenue in
Brooklyn, New York. The agents observed an FM broadcast antenna on the
roof and a coaxial cable that ran from the antenna into the window of
Apartment 4P of 395 Ocean Avenue. One of the agents entered the
apartment building and rang the buzzer for Apartment 4P. The agent
identified himself as an FCC agent to the man who answered and
informed the man that he was coming to his apartment to talk to him.
When the agent knocked on the door of Apartment 4P, no one answered.
The agent returned to the lobby and rang the buzzer to Apartment 4P
once more, but there was no answer.
7. When the agents returned to the direction-finding vehicle, they could
hear that the station was still on the air and the station announcer
identified the station as "102.3 Red Hot FM." 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. An agent searched Commission databases
and found no evidence of a Commission authorization for this operation
on 102.3 MHz in Brooklyn, New York.
8. On July 19, 2006, a Commission agent again contacted the management of
395 Ocean Avenue, Brooklyn, New York and confirmed that Simpson is the
tenant in Apartment 4P. At the agent's request, management submitted
to the New York Office a copy of Simpson's lease agreement.
9. On July 20, 2006, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 102.3 MHz in Brooklyn, NY. The agents
again observed a radio station broadcasting on 102.3 MHz and
determined that the station was operating from 395 Ocean Avenue in
Brooklyn, New York. Agents, along with the building superintendent,
observed an FM broadcast antenna on the roof and a coaxial cable that
ran from the antenna into the window of Apartment 4P. The
superintendent accompanied the agents to Apartment 4P. Agents heard
noises behind the door of Apartment 4P and knocked on the door, but no
one answered. Agents left a copy of the NOUO, dated February 14, 2006,
under the door of the apartment. When agents returned to their
vehicle, they observed that the station had gone off the air.
III. DISCUSSION
10. 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.
11. 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.
Agents determined that, on January 12, May 6, July 15, and July 20,
2006, an unlicensed radio station was broadcasting on 102.3 MHz from
Apartment 4P at 395 Ocean Avenue in Brooklyn, New York. Agents further
determined that Simpson is the lessee of Apartment 4P and the New York
Office issued a NOUO to Simpson on February 14, 2006, notifying him
that the operation of his station was unauthorized and must cease
immediately. Because Simpson continued to operate his station even
after being warned, we find that Simpson's violation was willful.
Simpson's violation occurred on more than one day, therefore it is
repeated.
12. Based on the evidence before us, we find that Simpson willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission equipment on 102.3 MHz in Brooklyn, New York, on January
12, 2006, May 6, 2006, July 15, 2006, and July 20, 2006, without a
Commission authorization.
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. 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, a $10,000 forfeiture is warranted.
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, Elroy Simpson is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violation of Section 301 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, Elroy Simpson 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, 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.
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, 1A625, 445 12th
Street, S.W., 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 Elroy Simpson at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S 15.239.
Measurements showed that the field strength of the station's signal
exceeded the permissible level for a non-licensed Part 15 transmitter.
Commission agents previously found Simpson operating an unlicensed station
on 102.3 MHz from the same location in 2004. Agents first identified the
unlicensed operation in Apartment 4P at 395 Ocean Avenue on November 6,
2004. When the agents returned to that location on November 17, 2004, the
agents found the station still in operation. Building management informed
the agents that Simpson was the tenant in Apartment 4P. Agents attempted
to conduct an inspection in Apartment 4P. When no one answered, agents
placed a hand-written Notice of Unlicensed Operation ("NOUO") under the
door of the apartment. Later that day, a man who identified himself as
Elroy Simpson contacted the New York Office and reported that he received
the NOUO. Simpson stated that he had no equipment and that the cable going
into his apartment window was for his satellite dish. When agents returned
to 395 Ocean Avenue on November 18, 2004, the station had ceased
operating, but agents observed that the only cable going into Apartment 4P
was the cable that ran from the FM broadcast antenna on the roof. The New
York Office issued a Notice of Unlicensed Operation to Elroy Simpson on
November 18, 2004, for the unlicensed operation on November 6, 2004.
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 C.F.R. SS 0.111, and 0.311.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission