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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-08-NY-051
Yvon Louis ) NAL/Acct. No: 200832380009
Hollis, NY ) FRN: 0006 2631 72
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 17, 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 Yvon Louis ("Louis") apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
providing services and facilities incidental to the operation of an
unlicensed radio transmitter on the frequency 88.1 MHz in Hollis, NY.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Louis is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 20, 2008, in response to an interference complaint, a
Commission agent, using a mobile direction-finding vehicle, monitored
the frequency 88.1 MHz in Hollis, NY. The agent observed a radio
station broadcasting on 88.1 MHz and determined that the station was
operating from a building located at 186-15 Jamaica Avenue, Hollis,
NY. The agent observed an FM broadcast antenna on the roof of 186-15
Jamaica Avenue. The agent also observed a sign for Calvary Tabernacle,
which was involved in a prior unlicensed radio station operation, in
front of the building located at 186-17 Jamaica Avenue, Hollis, NY,
which was attached to the building located at 186-15 Jamaica Avenue,
Hollis, NY. 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 88.1 MHz in Hollis, NY.
3. On February 21, 2008, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 88.1 MHz in Hollis,
NY. The agent observed a radio station broadcasting on 88.1 MHz and
again determined that the station was operating from the building
located at 186-15 Jamaica Avenue, Hollis, NY. The agent observed an FM
broadcast antenna on the roof of 186-15 Jamaica Avenue. 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.
4. On February 22, 2008, the New York Office sent, via regular mail and
certified mail, return receipt requested, a NOUO addressed to Louis at
186-17 Jamaica Avenue, Hollis, NY 11423. A NOUO also was issued to
Jamaica Avenue Properties, the owner of the attached buildings located
at 186-15 Jamaica Avenue and 186-17 Jamaica Avenue, Hollis, NY 11423.
The NOUOs warned that operation of the unlicensed radio station on
88.1 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 NOUOs also directed Louis and Jamaica
Avenue Properties to terminate operation of the unlicensed station
immediately and provided ten days for Louis and Jamaica Avenue
Properties to reply. The NOUO sent to Louis via certified mail was
returned to the NY Office by the U.S. Postal Service as unclaimed. The
NOUO sent to Louis via regular mail was not returned to the New York
Office. The certified mail receipt for the NOUO sent to Jamaica Avenue
Properties was later returned to the New York Office by the U.S.
Postal Service with a signature indicating receipt of the NOUO.
5. On March 17, 2008, a Commission agent received a phone call from the
property owner of the attached buildings located at 186-15 Jamaica
Avenue and 186-17 Jamaica Avenue, Hollis, NY, who told the agent that
he received the NOUO from the FCC regarding the radio station on his
property. The owner informed the agent that Louis admitted to him that
he is responsible for the station. The owner also stated that he told
Louis to stop operating the station and to remove the antenna. At the
agent's request, the owner provided a copy of a lease for 186-17
Jamaica Avenue, Hollis, NY 11423, which showed that Louis is the
tenant for the first floor and the basement.
6. On March 18, 2008, Commission agents went to 186-17 Jamaica Avenue to
conduct a follow-up investigation. Louis was not present, but agents
observed a coaxial cable typically used in FM broadcast operations
disconnected from the FM broadcast antenna on the roof of the building
located at 186-15 Jamaica Avenue, Hollis, NY, but going into the
basement of 186-17 Jamaica Avenue, Hollis, NY. The agents observed
that the church, Calvary Tabernacle, is located in the basement of
186-17 Jamaica Avenue, Hollis, NY.
7. As of June 5, 2008, Louis did not submit a response to the February
22, 2008 NOUO to explain the circumstances regarding the operation of
his unlicensed transmitter at 186-17 Jamaica Avenue, Hollis, NY.
8. Louis was the subject of a prior FCC investigation in 2001 and 2002
regarding the operation of an unlicensed radio station on 88.1 MHz,
90.1 MHz, and 93.7 MHz at 1653 Nostrand Avenue in Brooklyn, NY, which
at the time was the location of the Cavalry Tabernacle church. Despite
receiving a written warning on November 23, 2001, that unlicensed
operation of a radio station constitutes a violation of Section 301 of
the Act and that such operation could result in penalties, including
seizure of the equipment, fines and imprisonment, Louis continued to
operate an unlicensed radio station. On July 23, 2002, the FCC's New
York Office issued a Notice of Apparent Liability for Forfeiture to
Louis in the amount of $10,000 for violation of Section 301 of the
Act. In response to the Notice of Apparent Liability for Forfeiture,
Louis did not deny operating radio transmission equipment at 1653
Nostrand Avenue in Brooklyn from November 2001 through January 2002,
but claimed that, after the inspection in December 2001, he exchanged
his one-watt transmitter for a transmitter that complied with the Part
15 emission limits. The Enforcement Bureau issued a Forfeiture Order
finding that, on several dates after Louis claimed to have begun using
a Part 15 transmitter, FCC agents detected a signal emanating from
1653 Nostrand Avenue that exceeded the permissible field strength
measurements for Part 15 devices. Louis filed a petition for
reconsideration of the Forfeiture Order again arguing that his radio
station operations complied with the FCC's Part 15 requirements. For
the same reasons stated in the Forfeiture Order, the Enforcement
Bureau denied Louis's petition for reconsideration.
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 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 things the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on February 20, 2008 and February 21, 2008, an unlicensed radio
station was broadcasting on 88.1 MHz from 186-15 Jamaica Avenue and
186-17 Jamaica Avenue, in Hollis, NY. Agents observed a coaxial cable
that had been attached to the antenna on the roof of the building of
186-15 Jamaica Avenue, Hollis, NY 11423, going into the basement of
186-17 Jamaica Avenue, Hollis, NY. A lease agreement provided by the
property owner shows that Louis is the tenant for the first floor and
basement of 186-17 Jamaica Avenue, Hollis, NY 11423. 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 Louis is responsible for the unlicensed station operation of 88.1
MHz at 186-17 Jamaica Avenue, Hollis, NY 11423, because he provided
the facilities used in the operation of the station. Louis's actions
were willful because he was warned during a prior investigation in
2001 and 2002 that operation of an unlicensed radio station
constitutes a violation of Section 301 of the Act. The violation was
repeated because it occurred on more than one day.
11. Based on the evidence before us, we find that Louis apparently
willfully and repeatedly violated Section 301 of the Act by providing
services and facilities incidental to the transmission of
communications by radio.
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. 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. Because Louis has a previous history of non compliance with
Commission Rules, we find that his apparent willful and repeated
operation of an unlicensed radio station is particularly egregious.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Louis is
apparently liable for a ($10,000) 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, Yvon Louis 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.
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, Yvon Louis 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. Louis shall also send
electronic notification on the date said payment is made to
NER-Response@fcc.gov.
16. 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. An electronic copy shall be
sent to NER-Response@fcc.gov
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. 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 Yvon Louis 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.
Agents believed the operator was Yvon Louis based on license plate
searches of vehicles observed on scene as well as a search of residents at
that location, both of which turned up the name Yvon Louis. In addition,
Louis was the subject of a prior investigation that took place in 2001 and
2002 where Louis was found to have operated an unlicensed radio station in
connection with the Cavalry Tabernacle church on 88.1 MHz, 90.1 MHz, and
93.7 MHz at another location in Brooklyn, NY. See infra para. 8.
See Rev. Yvon Louis, Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200232380002 (Enf. Bur., New York Office, released July 23,
2002).
See Rev. Yvon Louis, Forfeiture Order, 18 FCC Rcd 16187 (EB 2003).
Rev. Yvon Louis, Memorandum Opinion and Order, 19 FCC Rcd 17699 (EB 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."
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)(E).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
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Federal Communications Commission
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Federal Communications Commission