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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-08-NY-0291
Dexter Blake ) NAL/Acct. No: 200932380004
Mt. Vernon, New York ) FRN: 0018292433
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 3, 2009
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 Dexter Blake, ("Blake"), 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
101.5 MHz in Mt. Vernon, New York. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Blake is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On August 13, 2008, in response to an interference complaint, agents
from the Enforcement Bureau's New York office, using a mobile
direction-finding vehicle, monitored the frequency 101.5 MHz in Mt.
Vernon, New York. The agents observed radio transmissions on 101.5 MHz
and determined that the transmissions were from a station operating
from the Linkage Caribbean Restaurant at 78 East 3rd Street, Mt.
Vernon, New York 10550. The agents also observed an FM antenna on the
roof of the building. The agents 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 101.5 MHz in Mt. Vernon, New York.
3. On August 14, 2008, agents from the Enforcement Bureau's New York
office, using a mobile direction-finding vehicle, monitored the
frequency 101.5 MHz in Mt. Vernon, New York. The agents observed radio
transmissions on 101.5 MHz and again determined that the transmissions
were from a radio station operating from the Linkage Caribbean
Restaurant at 78 East 3rd Street, Mt. Vernon, New York 10550. The
agents also observed an FM antenna on the roof of the building. The
agents 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. The agent
searched Commission databases and found no evidence of a Commission
authorization for this operation on 101.5 MHz in Mt. Vernon, New York.
4. After taking measurements on August 14, 2008, the agents interviewed
the superintendent of the building at 78 East 3rd Street, Mt. Vernon
New York 10550. The superintendent accompanied the agents to the roof
of the building where they observed a coaxial cable going from the
antenna through a duct to the first floor of the building where
Linkage Caribbean Restaurant operates. The agents spoke to workers in
the restaurant who called the owner of the restaurant, Dexter Blake.
One of the agents spoke to Blake, who admitted to operating the
station. Blake shut down the audio remotely and told the agents that
he would not operate the station again. The agents left a
hand-delivered Notice of Unlicensed Operation ("NOUO") for Blake at
the restaurant advising him that his station was unlicensed and
informing him of the penalties for unlicensed operation, seizure of
the equipment, fines and imprisonment.
5. On August 20, 2008, the New York Office sent, via regular and
certified mail, a formal NOUO to Blake at 78 East 3rd Street, Mt.
Vernon, New York 10550. The NOUO again warned Blake that operation of
the unlicensed radio station on 101.5 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 Blake to terminate operation of the unlicensed station
immediately and provided Blake ten days to reply. The New York Office
did not receive a response to the NOUO.
III. DISCUSSION
6. 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.
7. 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." On August 13,
2008, and August 14, 2008, agents determined that an unlicensed radio
station operated on 101.5 MHz from the Linkage Caribbean Restaurant at
78 East 3rd Street, Mt. Vernon, New York 10550. Blake admitted
operation of the station to the New York agents on August 14, 2008.
Therefore, his violation is willful. In addition, a lease agreement
provided by the property owner shows that Blake is the tenant for the
retail space for the Linkage Caribbean Restaurant. 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 therefore find that, even
absent his admission to the agents on August 14, 2008, Blake is
responsible for the unlicensed station operation on 101.5 MHz at 78
East 3rd Street, Mt. Vernon, New York, because he provided the
facilities used in the operation of the station. The violation was
repeated because it occurred on more than one day. Based on the
evidence before us, we find that Blake apparently willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission apparatus without a license on 101.5 MHz.
8. 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 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 Dexter Blake is apparently liable for a
($10,000) forfeiture.
IV. ORDERING CLAUSES
9. 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, Dexter Blake 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.
10. 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, Dexter Blake SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. 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. If payment is made, Blake
should send electronic notification on the date said payment is made
to NER-Response@fcc.gov.
12. 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.
13. 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.
14. 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 Dexter Blake 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 subsequently determined that Blake leases the retail space for the
Linkage Caribbean Restaurant from the building owner, BMM Two, LLC.
On April 17, 2008, agents conducted an Internet search and discovered a
website called "Linkage Radio," which identified Dexter Blake, aka DJ
Linkage, as the owner of the radio station on 101.5 MHz and the Linkage
Caribbean Restaurant.
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