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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-TP-180
Marckenson Bazile ) NAL/Acct. No. 200832700001
Tampa, Florida ) FRN: 0016893083
)
)
FORFEITURE ORDER
Adopted: December 11, 2007 Released: December 13, 2007
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of one thousand four hundred fifty dollars ($1,450) to
Marckenson Bazile for willful and repeated violation of Section 301
of the Communications Act of 1934, as amended ("Act"). The noted
violations involve Mr. Bazile's operation of an unlicensed radio
transmitter.
II. BACKGROUND
2. While investigating an unauthorized broadcast station in the Port St.
Lucie, Florida area, on August 7 and 8, 2007, agents from the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
monitored broadcast transmissions on 100.9 MHz in Port St. Lucie,
Florida. The agents, using direction finding techniques, located the
transmissions to an antenna mounted on a house in Port St. Lucie,
Florida. A search of the St. Lucie County Property Appraiser records
confirmed that the property is owned by Mr. Bazile. The agents also
confirmed that one of the vehicles parked at this residence was
registered to Mr. Bazile. The agents 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. A search of the Commission's databases
revealed no authorization for a broadcast station on that frequency at
that address.
3. On August 16 and 17, 2007, agents from the Tampa Office again
monitored broadcast transmissions on 100.9 MHz in Port St. Lucie,
Florida. The agents found that the antenna had been removed from Mr.
Bazile's residence. The agents, using direction finding techniques,
located the transmissions to an antenna mounted to a commercial plaza
in Port St. Lucie, Florida. The agents traced a coaxial cable from the
antenna into a suite leased by Ti Pouchon Caribbean Sound LLC.
According to the Florida Department of State Corporations database,
Mr. Bazile's residence is Ti Pouchon Caribbean Sound LLC's mailing
address and Mr. Bazille is its registered agent. The agents noted Mr.
Bazille's vehicle parked at this location on August 17, 2007. The
agents also observed that the antenna had similar characteristics to
the antenna that was previously observed at Mr. Bazile's residence.
The agents 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. A search of the
Commission's databases revealed no authorization for a broadcast
station on that frequency at that address.
4. On August 18, 2007, agents from the Tampa Office interviewed Mr.
Bazile. He stated that he was responsible for the Ti Pouchon Caribbean
Sound business. He admitted that he owned the transmitter and had been
operating the station using various DJ names from that location for
the past two days.
5. On October 30, 2007, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Bazile in the amount of ten thousand
dollars ($10,000) for the apparent willful and repeated violation of
Section 301 of the Act. Mr. Bazile submitted a response to the NAL
requesting reduction or cancellation of the forfeiture.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act'), Section 1.80 of the Rules, 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) ("Forfeiture Policy Statement"). In
examining Mr. Bazile's response, Section 503(b) of the Act requires
that the Commission 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 other such matters as justice may require.
7. Section 301 of the Act requires 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. In particular, Section 301
states that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio (a) from
one place in any State, Territory, or possession of the United States
or in the District of Columbia to another place in the same State,
Territory, possession, or District; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." Agents from the Tampa Office
determined that, on August 7 and 8, 2007, an unlicensed radio station
operated on 100.9 MHz from Mr. Bazile's residence in Port St. Lucie,
Florida. Agents from the Tampa Office also determined that, on August
16 and 17, 2007, an unlicensed radio station operated on 100.9 MHz
from Mr. Bazile's business in Port St. Lucie, Florida. Mr. Bazile
admitted to operating the radio station from his business location for
two days. Thus, based on the evidence, we find that Mr. Bazile
willfully and repeatedly violated Section 301 of the Act by operating
an unlicensed radio transmitter.
8. In his response to the NAL, Mr. Bazile does not dispute that he
operated an unlicensed radio transmitter on August 16 and 17, 2007.
Rather he asserts he was unaware that his operation of the radio
station without a license was in violation of the Act. It is well
established, however, that a willful violation may occur,
"irrespective of any intent to violate any provision of this Act or
any rule or regulation of the Commission authorized by this Act."
Thus, because Mr. Bazile intended to operate the radio station, his
actions were willful. He also states that he started the station for
altruistic purposes and that the station broadcast primarily
educational, religious and news programming in French and Creole.
However, Section 301 of the Act does not exempt operators of radio
stations that broadcast educational, religious, or news programming
from the licensing requirement. Accordingly, we find no basis upon
which to cancel the forfeiture.
9. In addition, Mr. Bazile asserts that a $10,000 forfeiture would
produce a financial hardship and requests that the forfeiture be
cancelled or significantly reduced. The Commission has determined
that, in general, an entity's gross revenues are the best indicator of
its ability to pay a forfeiture. After reviewing Mr. Bazile's
financial documentation, we conclude that a reduction of the
forfeiture to $1,450 would be appropriate.
10. We have examined Mr. Bazile's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Mr. Bazile
willfully and repeatedly violated Section 301 of the Act. Although
cancellation of the proposed monetary forfeiture is not warranted,
reduction of the forfeiture amount to $1,450 is appropriate based on
his demonstrated inability to pay.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Marckenson Bazile IS LIABLE FOR
A MONETARY FORFEITURE in the amount of one thousand four hundred fifty
dollars ($1,450) for violation of Section 301 of the Act.
12. 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 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. 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.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Marckenson Bazile
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
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. On August 7 and 8, 2007, the measurements indicated that the
signals were 5,948, and 5,696 times greater, respectively, than the
maximum permissible level for a non-licensed Part 15 transmitter.
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. On August 16 and 17, 2007, the measurements indicated that the
signals were 11,575, and 10,992 times greater, respectively, than the
maximum permissible level for a non-licensed Part 15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832700001
(Enf. Bur., Tampa Office, October 30, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
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,' ... 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).
The 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: 312(f)(2).
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-4938
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Federal Communications Commission DA 07-4938