Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-08-NY-0283
Andre Alleyne
) NAL/Acct. No: 200932380003
Jessie White
) FRN: 0018 1064 01
Brooklyn, New York
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 10, 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 Andre Alleyne and Jessie White apparently 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 Brooklyn, New York. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Andre Alleyne and
Jessie White are apparently jointly and severally liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On July 11, 2008, the FCC New York Office received a complaint from
the Chief Engineer of FCC licensed station WQXR located in New York,
New York, about an apparent illegal broadcast station operating on
96.5 MHz in Brooklyn, New York causing interference to its listeners.
3. On July 23, 2008, a Commission agent, using a mobile direction-finding
vehicle, monitored the frequency 96.5 MHz in Brooklyn, New York. The
agent observed a radio station broadcasting on 96.5 MHz and determined
that the station was operating from an apartment building located at
580 Flatbush Avenue, Brooklyn, New York 11225. 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 96.5 MHz in Brooklyn,
New York.
4. On July 24, 2008, a Commission agent, using a mobile direction-finding
vehicle, again monitored the frequency 96.5 MHz in Brooklyn, New York.
The agent observed a radio station broadcasting on 96.5 MHz and
determined that the station was operating from an apartment building
located at 580 Flatbush Avenue, Brooklyn, New York 11225. The agent
subsequently took field strength measurements and determined that the
signals being broadcast still 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 Brooklyn, New York.
5. On the same day, after completing the field strength measurements,
Commission agents conducted an investigation on the roof of 580
Flatbush Avenue, Brooklyn, New York 11225. The agents observed a FM
broadcast antenna on the roof and a coaxial cable leading from the
antenna into an apartment window on the tenth floor of the building.
Upon further investigation, it was determined that the coaxial cable
was going into apartment # 10D of that same building. The agents,
accompanied by the building superintendent, attempted to inspect the
station in apartment # 10D, but the two women who answered the door
refused to allow the agents to enter the apartment. One the women
indicated that she resides in the apartment with her boyfriend, and
the agents advised her that the station in the apartment was operating
without a license and gave her a copy of a document specifying the
penalties for operating an unlicensed radio station. Further, the
agents advised the woman that the station was causing interference to
a licensed station and requested that the station be turned off.
After returning to the vehicle, the agents monitored 96.5 MHz and
noted that the station was off the air.
6. On July 25, 2008, a Commission agent obtained from the building
management office a copy of a lease showing that Andre Alleyne and
Jessie White are joint lessees of apartment # 10D at 580 Flatbush
Avenue, Brooklyn, New York 11225.
7. On July 30, 2008, the New York Office sent, via regular mail and
certified mail, return receipt requested, a NOUO addressed to Andre
Alleyne and Jessie White at 580 Flatbush Avenue, Apartment # 10D,
Brooklyn, New York 11225. The NOUO warned Andre Alleyne and Jessie
White that operation of the unlicensed radio station on 96.5 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 NOUO also directed Andre Alleyne and Jessie White to
terminate operation of the unlicensed station immediately and provided
Andre Alleyne and Jessie White ten days to reply. The NOUO sent via
certified mail was returned on August 21, 2008 to the New York Office
by the U.S. Postal Service as unclaimed. The NOUO sent via regular
mail were not returned to the New York Office. The New York Office did
not receive a response to the NOUO.
8. October 30, 2008, a Commission agent went back to 580 Flatbush Avenue,
Brooklyn, New York 11225 and met with the building superintendent. The
building superintendent stated that he was contacted shortly after the
agent's investigation on July 24, 2008 by Andre Alleyne and they both
went to roof and Mr. Alleyne removed the antenna. The agent and
building superintendent proceeded to the roof and confirmed that the
antenna previously observed on July 24, 2008 had been removed.
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 thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on July 23 and July 24, 2008, an unlicensed radio station was
broadcasting on 96.5 MHz from 580 Flatbush Avenue, Apartment # 10D,
Brooklyn, New York 11225. Agents further determined that Andre Alleyne
and Jessie White are lessees of Apartment # 10D. 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 Alleyne and
White are responsible for the unlicensed station operation on 86.5 MHz
at 580 Flatbush Avenue, Apartment #10D in Brooklyn, New York 11225,
because they provided the facilities used in the operation of the
station. The violation was repeated because it occurred on more than
one day.
11. Based on the evidence before us, we find that Andre Alleyne and Jessie
White apparently repeatedly violated Section 301 of the Act by
operating radio transmission equipment on 96.5 MHz at 580 Flatbush
Avenue, Apartment #10D in Brooklyn, New York 11225 on July 23 and July
24, 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 Andre
Alleyne and Jessie White are apparently jointly 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, Andre Alleyne and Jessie
White are hereby NOTIFIED of their APPARENT JOINT AND SEVERAL
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, Andre Alleyne and Jessie
White 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. Alleyne and White 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, New York 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 Andre Alleyne and Jessie White 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).
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.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission