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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-BS-001
Charles Clemons ) NAL/Acct. No: 200832260002
Boston, MA ) FRN: 0017500703
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 29, 2008
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 Charles Clemons ("Clemons") apparently willfully and repeatedly
violated Sections 301 of the Communications Act of 1934, as amended
("Act") by operating an unlicensed radio transmitter on the frequency
106.1 MHz in Boston, MA and willfully violated 303(n) by failing to
permit a station inspection. We conclude, pursuant to Section 503(b)
of the Act, that Clemons is apparently liable for a forfeiture in the
amount of seventeen thousand dollars ($17,000).
II. BACKGROUND
2. On January 4, 2007, the Boston Office received a complaint of an
unlicensed station from the Southern New England Society of Broadcast
Engineers. The complainant stated that there is an unlicensed pirate
station broadcasting on 106.1 MHz in the Dorchester neighborhood of
Boston, MA.
3. On January 11, 2007, agents from the FCC's Boston Office, using a
mobile direction-finding vehicle, monitored the frequency 106.1 MHz in
the Dorchester neighborhood of Boston, MA. The agents observed a radio
station broadcasting on 106.1 MHz and identified the source of the
transmissions to be emanating from an antenna located atop the
building at 487 Blue Hill Avenue, Boston, MA. The agents observed a
cable running from the roof of 487 Blue Hill Avenue to the roof of an
adjacent building, located at 7 Cheney Street. 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 show that no license had been issued to operate an FM
broadcast station on 106.1 in Boston, MA.
4. On that same day, after completing field strength measurements, the
agents entered the building at 7 Cheney Street to conduct a station
inspection. The agents encountered a man who identified himself as
Charles Clemons. Clemons refused to allow an inspection of his
station. The agents presented Clemons with a handwritten Notice of
Unlicensed Radio Operation (NOUO), which advised Clemons that he must
discontinue the unlicensed operation immediately and outlined the
possible penalties for continued operation of an unlicensed station.
5. On January 25, 2007, the Boston Office sent a written NOUO to Charles
Clemons for unlicensed operation on January 11, 2007 via certified
mail and regular mail to 7 Cheney Street in Boston, MA. The certified
letter receipt indicates the letter was successfully delivered to the
subject on January 26, 2007. To date, the Boston Office has not
received a reply from Clemons.
6. On August 15, 2007, the agents again observed the signal on 106.1 MHz
in Boston, MA. 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 agent searched Commission databases and found no evidence of a
Commission authorization for operation on 106.1 MHz in Boston, MA.
7. On January 7, 2008, the agents observed the signal on 106.1 MHz in
Boston, MA and, using mobile direction finding techniques, determined
that the source of the transmission was an antenna located on the top
of a building located at 487 Blue Hill Avenue, Boston, MA. The agents
observed a cable running from the roof of 487 Blue Hill Avenue to the
roof of an adjacent building, located at 7 Cheney Street. 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 agent searched the Commission
database and found no evidence of a Commission authorization for
operation on 106.1 MHz in Boston, MA. The agents spoke with Charles
Clemons in the building located at 7 Cheney Street. When confronted
with the station's operation, Clemons did not deny operating the
station. The agents advised Clemons that he must discontinue the
unlicensed operation immediately and outlined the possible penalties
for continued operation of an unlicensed station. When the agents
asked to conduct an inspection of the station, Clemons refused. When
questioned, he stated that the studio was at a different location, but
refused to provide the address.
8. Agents also determined that the station is streamed live on the
Internet at www.touchfm.org. On the website page that provides
information about the station, Charles Clemons is identified as one of
the station's founders.
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) 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 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 January 11,
2007, August 15, 2007, and January 7, 2008, agents determined that
Clemons operated radio transmission equipment at 487 Blue Hill Avenue
in the Dorchester neighborhood of Boston, MA without the required
Commission authorization. Clemons received written notices on January
11 and January 25, 2007, that his operation of the station was
unauthorized. Because Clemons continued to operate the station even
after receiving a written warning, his violation is willful. Clemons
violation occurred on more than one day, therefore, it is repeated.
Based on the evidence before us, we find that Clemons apparently
willfully and repeatedly violated Section 301 of the Act by operating
an FM radio transmitter without a license on 106.1 MHz in Boston, MA.
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
January 11, 2007, and January 7, 2008, Clemons refused to allow agents
to inspect the station. We therefore find that Clemons willfully
violated Section 303(n) of the Act by failing to allow an inspection
of his station.
12. 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 an 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)(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 Clemons is
apparently liable for a $17,000 forfeiture.
IV. ORDERING CLAUSES
13. 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, Charles Clemons 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 Communications Act.
14. 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, Charles Clemons SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
16. 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.
17. 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.
18. 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. 2055413
19. 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 Charles Clemons at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director,
Boston Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 301.
47 U.S.C. S: 303(n).
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 micro volts per meter ("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.
See supra n. 5.
See supra n. 5.
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.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 47 U.S.C.
S:S: 301, 303(n).
13 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission