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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-557
)
Jhony Desinor ) NAL/Acct. No.200332700008
)
) FRN 0007-8795-62
FORFEITURE ORDER
Adopted: July 27, 2004 Released: July 29, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to Jhony Desinor for willful violation
of Section 301 of the Communications Act of 1934, as
amended (``Act'').1 The noted violations involve Mr.
Desinor's operation of an FM broadcast station on the
frequency 105.9 MHz without Commission authorization.
2. On November 18, 2002, the Commission's Tampa, Florida,
Field Office (``Tampa Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Mr.
Desinor for a forfeiture in the amount of ten thousand
dollars ($10,000).2 Mr. Desinor responded to the NAL on
December 18, 2002.
II. BACKGROUND
3. On July 2, 2002, the Tampa Office received a complaint
alleging that an unauthorized radio station was being
operated from a residence located at 4073 Coconut Circle
North in Naples, Florida. Agents from the Tampa Office
investigated the complaint on July 16, 2002. The agents
observed an FM broadcast station operating on frequency
105.9 MHz and, using direction-finding techniques,
traced the station's signal to an antenna located at
4073 Coconut Circle North, Naples, Florida. The agents
determined on the basis of field strength measurements
that a Commission authorization was required to operate
that station.3 Later on the same day the agents again
observed an FM broadcast station operating on frequency
105.9 MHz and, using direction-finding techniques,
traced its signal to the antenna located at 4073 Coconut
Circle North, Naples, Florida. Shortly after these
observations the agents inspected the station and
observed Mr. Desinor talking into the microphone. The
agents asked Mr. Desinor whether he had a license to
operate the radio station; Mr. Desinor replied that he
did not have a license.4 At the agents' request, Mr.
Desinor deactivated the station's transmitter.
4. On November 18, 2002, the Commission's Tampa, Florida,
Field Office (``Tampa Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Mr.
Desinor for a forfeiture in the amount of ten thousand
dollars ($10,000). In his response, filed December 18,
2002, Mr. Desinor admits that he was a disc jockey at
the station located at 4073 Coconut Circle North,
Naples, Florida, and provides a roster indicating that
he was one of the station's operators. However, Mr.
Desinor asserts that he ``was not the owner and
operator'' of that station; that he ``never knew the
radio was functioning illegally''; that he did not
receive any financial benefit from the operation of the
station; that the ``owner and operator'' of the station
is ``free of charge''; and that he cannot pay the
proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amount in this case is being
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),5
Section 1.80 of the Rules,6 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). Section
503(b) of the Act requires that the Commission, in
examining Mr. Desinor's response, take into account the
nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability
to pay, and such other matters as justice may require.7
6. Section 301 of the Act prohibits unauthorized radio
operation: ``No person shall use or operate any
apparatus for the transmission of energy or
communications or signals by radio . . . except under
and in accordance with this Act and with a license in
that behalf granted under the provisions of this Act.''8
Mr. Desinor does not deny that the radio station he was
operating did not have a license. Mr. Desinor contends,
however, that he was invited to host a show at the radio
station and that he functioned as one of a group of
volunteers who were disk jockeys and hosts. Mr. Desinor
further argues that he is not responsible for the
illegal operation of the station because he was not
``the owner and operator'' of that station and did not
receive any revenues from the operation of the station.
Regardless of whether Mr. Desinor is the station's
``owner,'' it is undisputed that, at the time of the
inspection, he was the station's actual operator and was
in charge of the station. Mr. Desinor, therefore, was
responsible for its operation in violation of Section
301 of the Act at the time of the inspection.
Accordingly, we find that Mr. Desinor violated Section
301 of the Act.
7. Mr. Desinor's claim that he did not know the station
was operating illegally indicates that he may not have
intended to violate Section 301 of the Act but does not
negate the willfulness of the violation.9 Mr. Desinor,
however, stated to the FCC agents that he did not have a
license to operate the station. Further, Mr. Desinor
does not deny that he was the operator of the station
when the FCC inspected it. As the operator of the
unlicensed station and the person in charge, Mr. Desinor
acted consciously and deliberately. We, therefore,
conclude that Mr. Desinor willfully violated Section 301
of the Act. 10
8. Finally, Mr. Desinor contends that he cannot pay the
proposed forfeiture amount but has submitted no
financial documentation to support this claim. As
stated in the NAL, the Commission will not consider
reducing or canceling a forfeiture on the basis 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; or (3) some
other reliable and objective documentation that
accurately reflects the petitioner's current financial
status.
9. We have examined Mr. Desinor's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As a
result of our review, we conclude that Mr. Desinor
willfully violated Sections 301 of the Act and find no
basis for cancellation or reduction of the proposed
$10,000 monetary forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,11 Mr. Desinor IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully violating Section 301 of
the Act.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.12 Payment may be
made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission,
to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200332700008 and FRN 0007-8795-
62. Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.13
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Jhony Desinor at 1306 Wildwood Lakes
Boulevard, Apt. 6, Nalpes, FL 34104.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700008 (Enf. Bur., Tampa Office, released November 18,
2002).
3 See 47 C.F.R. § 15.239(b).
4 The Commission's license records indicated that there was no
license covering the operation of the station located at 4073
Coconut Circle North, Naples, Florida.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 301.
9 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
10 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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.,
supra.
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.