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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-LA-328
Dwayne Simon ) NAL/Acct. No.: 200732900011
Lancaster, California ) FRN: 0016502197
)
)
FORFEITURE ORDER
Adopted: March 19, 2008 Released: March 21, 2008
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of one hundred dollars ($100) to Dwayne Simon, ("Simon"),
for apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). On June 18, 2007, the
Enforcement Bureau's Los Angeles Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $10,000 to Simon for
operating an unlicensed radio transmitter on 95.9 MHz in Lancaster,
California. In this Order, we consider Simon's argument that he is
unable to pay the forfeiture amount proposed.
II. BACKGROUND
2. On December 30, 2006, agents from the Enforcement Bureau's Los Angeles
office used direction finding techniques to locate unidentified
broadcast transmissions on 95.9 MHz emanating from Simon's residence
in Lancaster, California. 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. According to FCC records, neither Simon,
nor any other person or entity, holds an authorization to broadcast on
that frequency from that location. The Los Angeles agents interviewed
Simon and inspected the station that same night. During the interview
Simon acknowledged to the agents that he was aware of the Commission's
requirement for a license to broadcast. Simon also acknowledged he was
also aware of the Commission's enforcement efforts against other
pirate broadcasters in the Lancaster, California area. The agents
issued an on-scene Notice of Unlicensed Operation to Simon that
advised him that his station was unlicensed and that unlicensed
operations could result in severe penalties including civil
forfeitures, a criminal fine and/or one year imprisonment. At the end
of the interview Simon told the agents that he would not operate the
station again and indicated that he would pursue an Internet-based
radio station as an alternative.
3. On January 24, 2007, the Commission's Los Angeles office sent a formal
Notice of Unlicensed Operation ("Notice") to Simon, which again warned
that unlicensed operations could subject the operator to severe
penalties. Simon did not respond to this Notice.
4. On April 6, 2007, Los Angeles agents again used direction finding
techniques to locate transmissions on 95.9 MHz emanating from Simon's
residence in Lancaster, California. The agents again 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 Los Angeles agents interviewed Simon
again and inspected his station. Simon again acknowledged operating
the unlicensed station on 95.9 MHz
5. On June 18, 2007, the Los Angeles Office issued a NAL in the amount of
$10,000 to Simon. In the NAL, the Los Angeles Office found that Simon
apparently willfully and repeatedly violated Section 301 of the Act by
operating radio transmission apparatus without a license on 95.9 MHz.
Simon filed a response ("Response") to the NAL on July 19, 2007, and
supplemented his response on March 7, 2008. In his Response, Simon
states that he is unable to pay the proposed forfeiture amount.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the 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. In examining
the 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. On December 30, 2006, and
April 6, 2007, Simon operated radio transmitting equipment at his
residence in Lancaster, California, on 95.9 MHz without the required
Commission authorization.
8. In his Response, Simon does not dispute the facts recited in the NAL
and apologizes for his actions. He states that he has dismantled his
transmitter system. He also asserts an inability to pay the forfeiture
and supplies personal financial information to support this claim. In
analyzing a financial hardship claim, the Commission generally has
looked to gross revenues as a reasonable and appropriate yardstick in
determining whether a licensee is able to pay the assessed forfeiture.
While we find that Simon willfully and repeatedly violated Section 301
of the Act, based upon his inability to pay, we conclude that pursuant
to Section 503(b) of the Act and the Forfeiture Policy Statement,
reduction of the $10,000 forfeiture to $100 is warranted.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Dwayne Simon, IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $100 for willfully
and repeatedly violating Section 301 of the Act.
10. 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/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 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.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Dwayne
Simon, at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western 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. The measurements made on December 30, 2006, indicated that the
signal was 607 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
The measurements made on April 6, 2007, indicated that the signal was 1938
times greater than the maximum permissible level for a non-licensed Part
15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732900011
(Enf. Bur., Western Region, Los Angeles Office, released June 18, 2007).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive
where it represented approximately 2.02 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).
Federal Communications Commission DA 08-606
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Federal Communications Commission DA 08-606