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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-08-NY-053
Alexander Kissi ) NAL/Acct. No: 200832380010
Bronx, New York ) FRN: 0017 5841 29
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 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 Alexander Kissi ("Kissi") 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
96.5 MHz in Bronx, New York. We conclude, pursuant to Section 503(b)
of Act, that Kissi is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 25, 2008, the New York Office of the FCC's Enforcement
Bureau received a complaint from a licensed radio broadcaster of an
unlicensed radio station operating on 96.5 MHz in Bronx, NY. The
complainant believed that the unlicensed transmissions were emanating
from 3944 White Plains Road, Bronx, NY.
3. On February 28, 2008, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 96.5 MHz in Bronx,
New York. The agent observed a radio broadcast on 96.5 MHz and
identified the source of the transmissions as an FM broadcasting
antenna mounted on the roof of a two story building at 3944 White
Plains Road, Bronx, NY 10466. The agent 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 96.5 MHz in Bronx, New York.
4. On March 1, 2008, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 96.5 MHz in Bronx, New York. The
agents observed a radio broadcast on 96.5 MHz and identified the
source of the transmissions as an FM broadcasting antenna mounted on
the roof of 3944 White Plains Road. 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. An agent searched Commission databases and found
no evidence of a Commission authorization for this operation on 96.5
MHz in Bronx, New York.
5. After completing the field strength measurements on March 1, 2008, the
agents returned to 3944 White Plains Road, entered the building, and
proceeded to the second floor. The agents spoke to a man who worked
there, and a woman who was doing a live radio broadcast from a small
broadcast studio. In response to agents' questions about the radio
station, both the man and the woman stated that Alexander Kissi was in
charge of the station, but that Kissi was not there at the time. While
in the studio, the agents observed signs on the wall that read "Life
Sat Radio," "96.5 FM," and listed Kissi as a contact. The agents
traced the audio cables from the studio to another room on the second
floor, where they observed a Ptek Model FM150E transmitter, set to 46
watts according to the transmitter's LCD display. The transmitter's
output was connected to a coaxial cable which ran out a window to an
antenna on the roof. The agents provided the woman a hand-written
Notice of Unlicensed Operation ("NOUO") addressed to both Kissi and
the woman. The NOUO warned that operation of the unlicensed radio
station on 96.5 MHz violated 47 U.S.C. S: 301; outlined the potential
penalties for operating an unlicensed station in violation of 47
U.S.C. S: 301, including seizure of the equipment, fines and
imprisonment; and directed the operator of the station to terminate
operation of the unlicensed station immediately. The woman signed the
NOUO and stated that she would give it to Kissi.
6. On March 3, 2008, the New York Office sent a NOUO, by First Class and
Certified Mail Return Receipt Requested, to Kissi at 3944 White Plains
Road, Bronx, NY 10466. The NOUO warned Kissi that operation of the
unlicensed radio station on 96.5 MHz violated 47 U.S.C. S: 301;
outlined the potential penalties for operating an unlicensed station
in violation of 47 U.S.C. S: 301, including seizure of the equipment,
fines and imprisonment; and directed Kissi to terminate operation of
the unlicensed station immediately. The NOUO offered Kissi ten days to
reply.
7. On March 6, 2008, a Commission agent spoke to Kissi by telephone
regarding the unlicensed station on 96.5 MHz at 3944 White Plains
Road. Kissi stated that he takes full responsibility for operation of
the station and that the station will not come back on the air. Kissi
also stated that he received the NOUO mailed on March 3, 2008 and that
he plans to respond. The New York Office has not received a reply to
the NOUO.
8. A review of New York Office records (Case EB-02-NY-209) revealed that
a NOUO was hand-delivered to Kissi on September 7, 2002, and another
NOUO was mailed to Kissi on September 9, 2002 for his unlicensed
operation of an FM broadcast station on 87.9 MHz at 3944 White Plains
Road.
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) 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.
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. On
February 28 and March 1, 2008, agents determined that an unlicensed
radio station was operating on the frequency 96.5 MHz from 3944 White
Plains Road, Bronx, NY 10466. During an inspection of the station on
March 1, 2008, two individuals at the station reported to agents that
Kissi is responsible for the station's operation and Kissi
subsequently admitted to an agent that he is responsible for the
station. Because Kissi took full responsibility for operation of the
station and because Kissi was issued two warning letters in 2002 for
his unlicensed operation at the same location, we find that the
violation was willful. The unlicensed operation continued for more
than one day; therefore the violation was repeated.
11. Based on the evidence before us, we find that Kissi apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment on 96.5 MHz in Bronx, NY on February 28
and March 1, 2008, without a Commission authorization.
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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Kissi 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, Alexander Kissi 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.
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, Alexander Kissi 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 Alexander Kissi 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 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: 301.
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: 301.
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Federal Communications Commission
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Federal Communications Commission