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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-08-NY-0143
Jean Clerveaux
) NAL/Acct. No: 200932380002
Joselyn Edwards
) FRN: 0018 1266 31
Brooklyn, New York
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 24, 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 Clerveaux ("Clerveaux") and Joselyn Edwards ("Edwards")
apparently 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 90.5 MHz in Brooklyn, New York. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Clerveaux and Edwards are apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On March 9, 2008, in response to an interference complaint, a
Commission agent, using a mobile direction-finding vehicle, monitored
the frequency 90.5 MHz in Brooklyn, New York. The agent observed a
radio station broadcasting on 90.5 MHz and determined that the station
was operating from an apartment building at 120 E 19th Street in
Brooklyn, New York. 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. The agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 90.5 MHz in Brooklyn, New York.
The agent returned to 120 E. 19th Street the next day and observed an
antenna on the roof of the apartment building and a coaxial cable
going from the antenna into a second floor window in the rear of the
building.
3. An agent again monitored the frequency 90.5 MHz on April 5 and 6,
2008, and both times determined that a radio station was broadcasting
from 120 E. 19th Street in Brooklyn, NY. The agent took field strength
measurements and determined that the signals being broadcast on April
5 and April 6, 2008, 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 this operation on 90.5 MHz in Brooklyn, New York.
4. On April 11, 2008, agents returned to the apartment building at 120 E.
19th Street in Brooklyn, NY and met with the building superintendent,
who advised the agents that the antenna coaxial cable was going into
apartment 2E, which was leased to Jocelyn Edwards and Jean Clerveaux.
Agents subsequently confirmed with the owners of the building that
Edwards and Clerveaux are the lessees of apartment 2E.
5. On April 15, 2008, the New York Office sent, via regular mail and
certified mail, return receipt requested, a NOUO addressed to
Clerveaux and Edwards at 120 E 19th Street, Brooklyn, New York 11226.
The NOUO warned Clerveaux and Edwards that operation of the unlicensed
radio station on 90.5 MHz violates 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 Clerveaux
and Edwards to terminate operation of the unlicensed station
immediately and provided Clerveaux and Edwards ten days to reply.
6. On April 16, 2008, Commission agents went to 120 E 19th Street, in
Brooklyn to conduct a follow-up inspection. Agents observed a FM
broadcast antenna on the roof of the building and the antenna coaxial
cable going into the same window that the building superintendent
previously had identified as apartment 2E. The agents knocked on the
door of apartment 2E and identified themselves to a woman who answered
the door. In response to questions from the agents, the woman said
that the apartment belongs to Clerveaux and Edwards and that they were
not home and that she did not have a telephone number to contact them.
The woman told the agents that they should come back the next morning
when Clerveaux would be home. The agents gave the woman a copy of the
NOUO and asked her go give it to Clerveaux and Edwards.
7. On April 17, 2008, Commission agents returned to 120 E 19th Street to
conduct a follow-up investigation. The agents attempted to conduct an
inspection at apartment 2E with Clerveaux and Edwards, but no one
answered when the agents knocked on the door. When leaving the
building, the agents noted that the FM broadcasting antenna that
previously had been on the roof had been removed.
8. On April 18, 2008, the New York Office received a response to the NOUO
from Clerveaux and Edwards. In their response, Clerveaux and Edwards
stated that they do not have a radio station in their apartment. They
further stated that they share the apartment with two other
individuals, but they did not provide the names of those individuals.
In a subsequent written response from Clerveaux, and during an
interview that took place with Clerveaux in apartment 2E on June 7,
2008, Clerveaux reported that he is responsible for the electrical
bills for apartment 2E.
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 "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 March 9, 2008, April 5, 2008, and April 6, 2008, an
unlicensed radio station was broadcasting on 90.5 MHz from 120 E 19th
Street, Apartment 2E, Brooklyn, New York 11226. Agents further
determined that Clerveaux and Edwards are the lessees of apartment 2E
and that Clerveaux is responsible for the electricity in apartment 2E.
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 Clerveaux and Edwards are responsible for the unlicensed station
operation on 90.5 MHz from 120 E 19th Street, Apartment 2E, Brooklyn,
New York, and that their actions amounted to repeated violations of
Section 301 of the Act.
11. Based on the evidence before us, we find that Clerveaux and Edwards
apparently repeatedly violated Section 301 of the Act by operating
radio transmission equipment on 90.5 MHz in Brooklyn, NY on March 9,
2008, April 5, 2008 and April 6, 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 Jean
Clerveaux and Joselyne Edwards are 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, Jean Clerveaux and Joselyn
Edwards are hereby NOTIFIED of their APPARENT JOINT AND SEVERAL
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for repeated 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, Jean Clerveaux and
Joselyn Edwards 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. Clerveaux and Edwards
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 Jean Clerveaux and Joselyn Edwards at
their 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)(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).
We note that the presence of other individuals in the apartment who may be
responsible for the operation of the station does not change our
conclusions here. The Enforcement Bureau previously has 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. 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: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