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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
In the Matter of ) File Number: EB-04-NY-086
Jean L. Senatus ) NAL/Acct. No: 2005323800XX
Spring Valley, NY ) FRN: 0010 9802 90
)
FORFEITURE ORDER
Adopted: August 30, 2005 Released:
September 1, 2005
By the Regional Director, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand five
hundred dollars ($2,500) to Jean L. Senatus (``Mr.
Senatus'') for willful and repeated violation of Section
301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Mr. Senatus's
operation of a radio station on the frequency 96.1 MHz in
Spring Valley, New York without a Commission license.
II. BACKGROUND
2. On April 2, 2004, the FCC New York Office received
a complaint of interference from an FCC licensed radio
station about an illegal broadcast station operating on
the frequency 96.1 MHz in Spring Valley, New York. The
licensed station operates on the frequency 96.3 MHz in New
York, New York.
3. On April 7, 2004, a Commission agent, using a
mobile direction-finding vehicle, monitored the frequency
96.1 MHz in Spring Valley, New York. The agent observed a
radio broadcast on 96.1 MHz and identified the source of
the transmissions as an FM broadcasting antenna on an
office building at 52 South Main Street, Spring Valley,
New York 10977. The agents took field strength
measurements of the station's signal and determined that
the station required a license to operate.2 The agent
searched Commission databases and found no evidence of a
Commission authorization for operation on 96.1 MHz in
Spring Valley, New York.
4. On April 17, 2004, Commission agents, using a
mobile direction-finding vehicle, monitored the frequency
96.1 MHz in Spring Valley, New York. The agents again
observed a radio station broadcasting on 96.1 MHz and
determined that the station was operating from 52 South
Main Street, Spring Valley, New York. The agents observed
an FM broadcast antenna on the roof of the building,
entered the building, and heard broadcasts on 96.1 MHz
coming from behind one of the doors on the second floor.
5. The agents knocked on the door and were allowed
entry into the office space where the radio station was in
operation and a group of five men were present. The
office space was empty except for the radio transmitting
equipment. Agents observed studio equipment, an RF power
amplifier, and an antenna cable going into an FM
transmitter. In response to questions from the agents
about the operation of the radio station, one of the men,
who was identified from a driver's license as Jean L.
Senatus, assumed responsibility for operation of the
station. Mr. Senatus also stated that he did not know the
name of the lessee of the office space.
6. On April 21, 2004, the New York Office sent a
Warning Letter, by First Class Mail and Certified Mail,
Return Receipt Requested, to Jean L. Senatus for
unlicensed operation on the frequency 96.1 MHz. On April
29, 2004, the New York Office received a reply to the
Warning Letter from Mr. Senatus. Mr. Senatus admitted to
being present during the operation of the station. He
stated, however, that he does not own the station and that
he was not aware that a license was required to operate a
radio station. Mr. Senatus further stated that station
operations ceased immediately upon receipt of the warning
letter from the FCC.
7. On May 3, 2004, a Commission agent spoke to the
owner of 52 South Main Street, Spring Valley, New York,
who identified Mr. Senatus as the lessee of the second
floor office space inspected by the agents. The building
owner told the agent that he was aware of the antenna on
the roof of his building, but that he was told by Mr.
Senatus that the antenna on the roof was for a low power
FM radio station. The lease agreement between Jean L.
Senatus and the owner of 52 South Main Street, Spring
Valley, New York, provides that Mr. Senatus was to occupy
the office space on the second floor to conduct his
business as a producer of a television show.
8. On November 8, 2004, the New York Office issued a
Notice of Apparent Liability to Mr. Senatus in the amount
of ten thousand dollars ($10,000). Mr. Senatus submitted
a reply on November 29, 2004. In his reply, Mr. Senatus
does not deny having worked at the station, but seeks a
reduction in the forfeiture amount on the following
grounds: (1) he was not solely responsible for the
station's operations, but rather the station was
controlled by a group of individuals; (2) there was no
advertising on the station and no profits were earned by
any of the individuals involved in the station's
operation; (3) he did not understand the nature of his
actions and did not act with malice; (4) he was not aware
that the station did not have a license; (5) he ceased
operating after the FCC agents inspected the station and
provided him a warning letter; and (6) he is financially
unable to pay the full forfeiture amount.
III. DISCUSSION
9. The forfeiture amount proposed in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section
1.80 of the Rules,4 and the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.5 In assessing
forfeitures, Section 503(b)(2)(D) of the Act requires that
we 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.6
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. Agents determined that a radio station broadcasting
on 96.1 MHz operated from 52 South Main Street in Spring
Valley, New York on April 7, 2004 and April 17, 2004
without a license. When agents inspected the station
during its operation on April 17, 2004, Mr. Senatus
assumed responsibility for the station's operation. In
addition, in response to the Notice of Apparent Liability
issued on November 8, 2004, Mr. Senatus admits to having
worked at the station. Thus, based on the evidence, we
find that Mr. Senatus willfully7 and repeatedly8 violated
Section 301 of the Act by operating a radio station
without a license.
11. We decline to reduce the forfeiture amount
based on Mr. Senatus's claims that he was not solely
responsible for the station's operation and that the
station operated on a not-for-profit basis. Section 301
of the Act provides that ``no person shall use or
operate'' radio transmission equipment without a valid
Commission authorization. The Act does not provide that a
forfeiture can be assessed only where we are able to
identify all individuals involved in the operation of an
unlicensed station.9 Further, the Act does not make a
distinction between unlicensed operation on a for-profit
basis and unlicensed operation on a not-for-profit basis.
Thus, the fact that Mr. Senatus was not the only
individual involved in the operation of the station and
the fact that the station operated on a not-for-profit
basis are irrelevant to whether Section 301 of the Act has
been violated and therefore do not warrant a reduction in
the forfeiture.
12. We likewise decline to reduce the forfeiture
based on Mr. Senatus's assertions that (1) he was unaware
there was no license for the station, (2) he did not
understand the nature of his actions, and (3) he did not
act with malice. The Commission has consistently stated
that ignorance of the law is not a mitigating factor.10
Further, Section 312(f)(1) of the Act, 47 USC § 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 ...." Thus, even if Mr. Senatus
did not intend to violate Section 301 of the Act and did
not act with malice, he acted willfully for purposes of
the Act by deliberately operating the station.
13. Finally, we decline to reduce the forfeiture
based on the fact that Mr. Senatus ceased operations after
the FCC agents inspected the station and provided him a
warning letter. As the Commission consistently has
stated, ``corrective action taken to come into compliance
with Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or
violations.''11
14. We do find, however, that based on Mr.
Senatus's demonstrated inability to pay, the proposed
forfeiture amount should be reduced to $2,500.
IV. ORDERING CLAUSES
15. 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,12 Jean L. Senatus IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand five
hundred dollars ($2,500) for willful and repeated
violation of Section 301 of the Act.
16. Payment of the forfeiture shall be made in
the manner provided for in Section 1.80 of the Rules
within thirty (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.13
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/Acct. No. and FRN No. referenced above. Payment
by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent
to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank,
and account number 911-6106.
17. IT IS FURTHER ORDERED that a copy of this
Order shall be sent by First Class and Certified Mail
Return Receipt Requested to Jean L. Senatus at his address
of record.
FEDERAL COMMUNICATIONS
COMMISSION
Russell Monie, Jr.
Regional Director, Northeast
Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
2Section 15.239(b) of the Commission's Rules, 47 C.F.R. §
15.239(b), provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of
the transmissions does not exceed 250 µV/m at three meters.
Measurements showed that the field strength of the
station's signal exceeded the permissible level for a non-
licensed low-power radio transmitter.
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Policy Statement'').
647 U.S.C. § 503(b)(2)(D).
7Section 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., 6 FCC Rcd 4387
(1991).
8As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
9We also note that, while Mr. Senatus may not have been
solely responsible for operation of the unlicensed station,
he appears to have been primarily responsible. First, he
assumed responsibility for operation of the station during
the station inspection on April 17, 2004. Second, he is
the lessee on the lease agreement for the office space from
which the station was operated.
10Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991), citing Vernon Broadcasting, Inc., 60 RR 2d 1275,
1277 (1986) and Fay Neel Eggleston, 19 FCC 2d 829 (1969).
11See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
1247 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1347 U.S.C. § 504(a).