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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-NY-418
Trevor W. Whitely ) NAL/Acct. No: 200832380003
Brooklyn, NY ) FRN: 0017 1319 54
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 25, 2008
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 Trevor W. Whitely 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
Communications Act of 1934, as amended ("Act"), that Trevor W. Whitely
is apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On October 22, 2007, in response to an interference complaint, a
Commission agent, using a mobile direction-finding vehicle, monitored
the frequency 102.3 MHz in Brooklyn, NY. The agent observed a radio
station broadcasting on 102.3 MHz and determined that the station was
operating from an apartment building at 410 Eastern Parkway, Brooklyn,
New York, 11225. Agents heard the station announcer identify the
station as "102.3 Red Hot FM." The agent 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, NY.
3. On October 23, 2007, 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 again determined that the station was operating from an
apartment building at 410 Eastern Parkway, Brooklyn, New York, 11225.
Agents heard the station announcer identify the station as "102.3 Red
Hot FM." The agent 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.
Commission agents observed at 410 Eastern Parkway, Brooklyn, NY, an FM
broadcast antenna on the roof and a coaxial cable going into the
basement.
4. On October 30 and October 31, 2007, the New York Office received
e-mail complaints from Radio Station WBAB, 102.3 FM, Long Island, NY,
concerning interference to their broadcast signal on 102.3 MHz, from a
station in Brooklyn, New York, transmitting on 102.3 MHz.
5. On November 6, 2007, 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 again determined that the station was operating from an
apartment building at 410 Eastern Parkway, Brooklyn, New York, 11225.
Agents heard the station announcer identify the station as "102.3 Red
Hot FM."
6. Also on November 6, 2007, based on the investigation conducted by FCC
agents, a district judge in the United States District Court, Eastern
District of New York, signed a warrant authorizing the U.S. Marshals
to seize the transmission equipment at 410 Eastern Parkway, Brooklyn,
New York, 11225. The U.S. Marshals carried out the Warrant of Arrest
in rem on that same day. Upon entry into the apartment building, 410
Eastern Parkway, Brooklyn, NY, agents along with the marshals found
Trevor Whitely, the building superintendent, in the lobby of the
building. Agents and marshals identified themselves and requested to
go to the basement to see the radio station equipment. Mr. Whitely
accompanied the agents and marshals to the basement and, upon request,
unlocked a door that led into a small room. Agents observed the radio
station equipment in the corner of the room and questioned Mr. Whitely
about the equipment. Mr. Whitely claimed the equipment was not his,
but admitted that he allowed the radio station equipment to be placed
in his basement and also allowed the FM broadcast antenna to be
installed on the roof of the building. Mr. Whitely claimed that he
only knew the owner of the equipment as DJ Elly, but would not provide
any information other than a phone number. Agents also traced a cable
modem wire connected to the radio equipment and questioned Mr. Whitely
on the source of this cable, which he admitted was coming from his
apartment within the building, Apt. 1B. In accordance with the in rem
warrant, all radio station equipment was inventoried and then
confiscated by the U.S. Marshals.
7. On November 9, 2007, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") addressed to Trevor W. Whitely at his address of
record. The NOUO warned Whitely 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 Whitely to
terminate operation of the unlicensed station immediately and provided
Whitely ten days to reply. Whitely 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.
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 Act and with a license granted under the provisions of the Act.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on October 22, 2007, October 23, 2007, and November 6, 2007, an
unlicensed radio station was broadcasting on 102.3 MHz from 410
Eastern Parkway, Brooklyn, New York, 11225. During the execution of
the in rem arrest warrant at 410 Eastern Parkway in Brooklyn on
November 6, 2007, agents encountered Mr. Whitely, who admitted to
allowing individuals to place radio transmitting equipment in the
building's basement and allowing the station to connect to a cable
modem located in his apartment. In this regard, we find that Mr.
Whitely provided services and facilities incidental to the
transmission of communications by radio occurring on 102.3 MHz at 410
Eastern Parkway. We have previously held that liability for unlicensed
operation may be assigned to any individual taking part in the
operation of the unlicensed station, regardless of who else may be
responsible for the operation, because Section 301 of the Act provides
that "no person shall use or operate" radio transmission equipment.
Taken together, we find that Mr. Whitely's actions amounted to willful
and repeated violations of Section 301 of the Act.
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)(E) 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 Trevor W.
Whitely 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, Trevor W. Whitely 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.
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, Trevor W. Whitely 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, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014and 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. 20554.8
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 Trevor W. Whitely 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.
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.
Amended Summons and Warrant for Arrest of Article In Rem, Civil Action No.
07-4012, District Judge Brian M. Cogan. The in rem seizure warrant issued
on November 6, 2007, was the result of an FCC investigation that began in
2004 of the unlicensed radio operations on 102.3 MHz in Brooklyn, NY. See
Elroy Simpson, Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200732380002 (Enf. Bur., New York Office, rel. November 8, 2006); Elroy
Simpson, Forfeiture Order, 22 FCC Rcd 752 (2007). When the initial
complaint for an in rem warrant was filed with the court, the station was
located at 782 East 32nd Street, Brooklyn, NY 11210. An amended complaint
subsequently was filed identifying the station's location as 410 Eastern
Parkway, Brooklyn, NY.
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: 153(33).
47 U.S.C. S: 301; See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793
(EB 2006); See also Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418
(EB 2005).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission