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Federal Communications Commission
Washington, D.C. 20554
) File Number EB-02-TP-557
In the Matter of
) NAL/Acct. No.200332700008
) FRN 0007-8795-62
MEMORANDUM OPINION AND ORDER
Adopted: July 11, 2006 Released: July 13, 2006
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we dismiss the
petition for reconsideration filed by Jhony Desinor as untimely. Mr.
Desinor seeks reconsideration of a Forfeiture Order issued by the
Enforcement Bureau on July 29, 2004, to him in the amount of ten
thousand dollars ($10,000) for willful violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violation
involves Mr. Desinor's operation of an FM broadcast station on the
frequency 105.9 MHz without Commission authorization. As discussed
below, we are dismissing Mr. Desinor's petition because it does not
comply with the timeliness requirements of Section 405(a) of the
Communications Act of 1934, as amended ("Act") and Section 1.106(f) of
the Commission's Rules ("Rules"), and is, therefore, procedurally
2. 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 the 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. Later 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. At the agents' request, Mr. Desinor
deactivated the station's transmitter.
3. 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 admitted that he was a disc jockey at the station located at
4073 Coconut Circle North, Naples, Florida, and provided a roster
indicating that he was one of the station's operators. Mr. Desinor,
however, asserted 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 could not pay the proposed forfeiture. In the
July 29, 2004, Forfeiture Order, we rejected these arguments and
imposed a forfeiture in the amount of $10,000 for willful violation of
Section 301 of the Act. In his petition for reconsideration of the
Forfeiture Order, Mr. Desinor argues that the forfeiture should be
reduced or cancelled because he did not know the station was
unlicensed, is not in the broadcasting business, and is unable to pay
4. Section 405(a) of the Act and Section 1.106(f) of the Rules provide
that a petition for reconsideration must be filed within thirty days
from the date of public notice of the final action. In this case,
public notice of the Forfeiture Order occurred upon its release on
July 29, 2004. The thirtieth day after July 29, 2004, was August 28,
2004 (a Saturday). When the computation of the filing date indicates
that a document is due to be filed on a Saturday, the document is due
on the next business day. Thus to have been timely, Mr. Desinor's
request for reconsideration had to be filed with the Commission no
later than the following Monday, August 30, 2004. Mr. Desinor's
submission was filed on August 31, 2004. Mr. Desinor, therefore, did
not timely file the petition for reconsideration. Accordingly, we are
unable to consider Mr. Desinor's petition for reconsideration and it
will be dismissed as untimely.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to Section 405(a) of the Act
and Section 1.106(f) of the Rules, Jhony Desinor's petition for
reconsideration IS DISMISSED as untimely.
6. 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. Payment of the forfeiture must be made
by check, money order 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 the 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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
7. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Marc L. Shapiro,
Esq., 720 Goodlette Rd., Suite #304, Naples, FL 34102.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Jhony Desinor., 19 FCC Rcd 14137 (Enf. Bur. 2004).
47 U.S.C. S 301.
47 U.S.C. S 405(a).
47 C.F.R. S 1.106(f).
See 47 C.F.R. S 15.239(b).
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.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332700008
(Enf. Bur., Tampa Office, released November 18, 2002).
See 47 C.F.R. S 1.4(b).
47 C.F.R. S 1.4(j) provides that, when the calculated filing date falls on
a "holiday," the document is due to be filed on the next business day. 47
C.F.R. S 1.4(e)(2) defines the term "holiday" as "Saturday, Sunday,
officially recognized Federal legal holidays and any other day on which
the Commission's offices are closed and not reopened before 5:30 p.m."
The petition for reconsideration was received at the FCC on August 31,
2004. Documents are considered to be filed on the date of receipt at the
location designated by the Commission. 47 C.F.R. S 1.7.
See Reuters Ltd. v. FCC, 781 F. 2d 946, 951 (D.C. Cir. 1986); National
Black Media Coalition v. FCC, 760 F. 2d 1297, 1299-1300 (D.C. Cir. 1985)
(Court of Appeals has no jurisdiction to consider an appeal from an FCC
decision filed more than 30 days after the date of public notice,
distinguishing Gardner v. FCC, 530 F. 2d 1086 (D.C. Cir. 1976); Washington
Broadcast Management Co., Inc. 15 FCC Rcd 6607 (2000); Panola Broadcasting
Co., 68 FCC2d 533 (1978); and Bay Broadcasting Corporation, 15 FCC Rcd
23449 (Enf. Bur. 2000); and Media Broadcasting Corporation, 19 FCC Rcd
1028 (Enf. Bur. 2004).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1437
Federal Communications Commission DA 06-1437