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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-NY-308
Jean Idalbert ) NAL/Acct. No: 200832380008
Brooklyn, NY ) FRN: 0017428293
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
April 29, 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 Jean Idalbert 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 90.9 MHz in
Brooklyn, NY. We conclude, pursuant to Section 503(b) of Act, that
Jean Idalbert is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 21, 2007, the FCC New York Office received a complaint from
a listener about a possible illegal broadcast station operating on
90.9 MHz in Brooklyn, NY, which was causing interference to station
WFUV in Bronx, NY, and station WKCR in New York, NY.
3. On August 27, 2007, agents from the Commission's New York Field
Office, using a mobile direction finding vehicle, monitored the
frequency 90.9 MHz in Brooklyn, NY. The agents observed a radio
broadcast on 90.9 MHz and identified the source of the transmissions
as an FM broadcasting antenna on the roof of 1151 New York Avenue,
Brooklyn, NY 11203. 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. An agent searched Commission databases
and found no evidence of a Commission authorization for operation on
90.9 MHz at this location in Brooklyn, NY.
4. On the same day, after completing field strength measurements,
Commission agents returned to 1151 New York Avenue, Brooklyn, NY
11203. The agents observed on the roof an FM broadcast antenna
mounted to a pole connected to a coaxial cable that lead to a ground
floor window of an apartment, which agents subsequently identified as
apartment A-6. Outside the entrance to the building, the buzzer for
apartment A-6 identified "Idalbert, J." as the tenant. Inside the
lobby, agents observed an apartment directory on the wall that also
identified "Idalbert, J.B." as the tenant in apartment A-6. The agents
knocked on the door to apartment A-6, but did not receive an answer.
Agents determined that the full name of the tenant is "Jean Idalbert."
5. On September 13, 2007, the New York Office issued Notices of
Unlicensed Operation, by First Class and Certified Mail Return Receipt
Requested, to Jean Idalbert and to 1151 Realty Corporation. The New
York Office did not receive a reply to the Notices of Unlicensed
Operation.
6. On December 15, 2007, Commission agents, using a mobile direction
finding vehicle, monitored the frequency 90.9 MHz in Brooklyn, NY. The
agents observed a radio broadcast on 90.9 MHz and identified the
source of the transmissions as an FM broadcasting antenna on the roof
of 1151 New York Avenue, Brooklyn, NY 11203. 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
90.9 MHz at this location in Brooklyn, NY.
7. On the same day, after completing the field strength measurements,
Commission agents returned to 1151 New York Avenue, Brooklyn, NY
11203. The agents proceeded to the roof and again observed an FM
broadcast antenna mounted to a pole connected to a coaxial cable that
lead to a ground floor window of apartment A-6. When the agents
knocked on the door, a man answered the door, but refused to identify
himself or allow the agents to conduct a station inspection. One of
the agents phoned the building superintendent and informed him that
there was an illegal radio station operating in apartment A-6. The
agent advised the superintendent to notify Jean Idalbert to cease
operation of the radio station and remove the antenna from the roof.
The superintendent agreed to take care of the matter as soon as
possible. After returning to the vehicle, the agents monitored 90.9
MHz and noted that the station was off the air.
8. On January 26, 2008, a Commission agent returned to 1151 New York
Avenue in Brooklyn, and again spoke with the superintendent, who
stated that, on December 16, 2007, he removed the antenna and returned
it to Idalbert. The superintendent also stated that he notified
Idalbert that FCC agents were there on December 15, 2007 and that the
agents stated that Idalbert must cease operating the radio station.
The superintendent also reported that he had previously warned
Idalbert to cease operation of the radio station after a visit from
Commission agents earlier in the year.
9. On February 15, 2008, the New York Office received a telephone call
from a Brooklyn NY resident with a complaint of receiving interference
to reception of FCC licensed station WFUV, 90.7 MHz.
10. On February 23, 2008, a Commission agent, using a mobile direction
finding vehicle, monitored the frequency 90.9 MHz in Brooklyn, NY. The
agent observed a radio broadcast on 90.9 MHz and identified the source
of the transmissions as an FM broadcasting antenna on the roof of 1151
New York Avenue, Brooklyn, NY 11203. The agent 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 90.9 MHz at
this location in Brooklyn, NY.
11. On the same day, after completing measurements, the Commission agent
returned to 1151 New York Avenue Brooklyn, NY 11203 and observed a
ground plane FM broadcasting antenna on the roof and the coaxial cable
was going into a window of apartment A-6. A review of Commission
databases revealed no evidence of a Commission authorization for
operation on 90.9 MHz at this location in Brooklyn, NY.
12. On February 28, 2008, a Commission agent visited the office of 1151
Realty LLC and obtained a renewal lease agreement that identified Jean
Idalbert as the tenant in apartment A-6 at 1151 New York Avenue,
Brooklyn, NY.
III. DISCUSSION
13. 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.
14. 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 August 26 and December 15, 2007, and February 23, 2008, an
unlicensed broadcast station was operating from apartment A-6 at 1151
New York Avenue, Brooklyn, NY 11203. A lease agreement obtained from
the building owner confirmed that Idalbert is the lessee of apartment
A-6. Despite written warnings to Idalbert, the unlicensed radio
station on 90.9 MHz continued to operate from Idalbert's apartment. We
have previously held that liability for unlicensed operation may be
assigned to an individual who provides services and facilities
incidental to the transmission of communications by radio. We find
that Idalbert is responsible for the unlicensed station operation on
90.9 MHz at 1151 New York Avenue in Brooklyn, NY and that his actions
amounted to willful and repeated violations of Section 301 of the Act.
15. Based on the evidence before us, we find that Jean Idalbert
apparently willfully and repeatedly violated Section 301 of the Act by
operating radio transmission equipment on 90.9 MHz in Brooklyn, NY on
August, 26 and December 15, 2007, and February 23, 2008, without a
Commission authorization.
16. 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 Jean
Idalbert is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
17. 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, Jean Idalbert 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.
18. 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, Jean Idalbert SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
19. 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.
20. 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.
21. 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.
22. 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 Jean Idalbert 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 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.
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).
See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793 (EB 2006).
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)(D).
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:301.
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Federal Communications Commission
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Federal Communications Commission