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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-LA-328
Dwayne Simon ) NAL/Acct. No.: 200732900011
Lancaster, California ) FRN: 0016502197
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 2007
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Dwayne Simon, ("Simon"), apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act") by operating an unlicensed radio transmitter on 95.9 MHz in
Lancaster, California. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Simon is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On December 30, 2006, agents from the Enforcement Bureau's Los Angeles
office used direction finding techniques to locate unidentified
broadcast transmissions on 95.9 MHz emanating from Simon's residence
in Lancaster, California. 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. According to FCC records, neither Simon,
nor any other person or entity, holds an authorization to broadcast on
that frequency from that location. The Los Angeles agents interviewed
Simon and inspected the station that same night. During the interview
Simon acknowledged to the agents that he was aware of the Commission's
requirement for a license to broadcast. Simon also acknowledged he was
also aware of the Commission's enforcement efforts against other
pirate broadcasters in the Lancaster, California area. The agents
issued an on-scene Notice of Unlicensed Operation to Simon that
advised him that his station was unlicensed and that unlicensed
operations could result in severe penalties including civil
forfeitures, a criminal fine and/or one year imprisonment. At the end
of the interview Simon told the agents that he would not operate the
station again and indicated that he would pursue an Internet-based
radio station as an alternative.
3. On January 24, 2007, the Commission's Los Angeles office sent a formal
Notice of Unlicensed Operation ("Notice") to Simon, which again warned
that unlicensed operations could subject the operator to severe
penalties. Simon did not respond to this Notice.
4. On April 6, 2007, Los Angeles agents again used direction finding
techniques to locate transmissions on 95.9 MHz emanating from Simon's
residence in Lancaster, California. The agents again 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 Los Angeles agents interviewed Simon
again and inspected his station. Simon again acknowledged operating
the unlicensed station on 95.9 MHz
III. DISCUSSION
5. 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.
6. Section 301 of the Act requires 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. On December 30, 2006, and
April 6, 2007, Simon apparently operated radio transmitting equipment
at his residence in Lancaster, California, on 95.9 MHz without the
required Commission authorization. Simon received notice on December
30, 2006, that his operation of the station was unauthorized. He
acknowledged operation of the station to Los Angeles agents on
December 30, 2006. Therefore, his violation is willful. Simon's
violation occurred on more than one day, therefore, it is repeated.
Based on the evidence before us, we find Simon apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission apparatus without a license on 95.9 MHz.
7. 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 operating a radio station 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 Simon
is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, Dwayne Simon 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.
9. 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, Dwayne Simon SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission.\001 The
payment must include the NAL/Acct. No. and FRN No. referenced
above.\001 Payment by\001check or money order may be mailed to Federal
Communications Commission, P.O. Box\001358340,\001Pittsburgh, PA
15251-8340.\001 Payment by overnight mail may be sent to\001Mellon
Bank\001/LB\001358340,\001500 Ross Street, Room 1540670, Pittsburgh,
PA 15251.\001\001 Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, CA 90703 and must include
the NAL/Acct. No. referenced in the caption.
12. 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.
13. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
14. 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 Dwayne Simon.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director,
Los Angeles Office
Western 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.
The measurements made on December 30, 2006, indicated that the signal was
607 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter.
The measurements made on December 30, 2006, indicated that the signal was
1938 times greater than the maximum permissible level for a non-licensed
Part 15 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)(E).
47 U.S.C. S 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission