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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number: EB-08-NY-0143
Jean Clerveau )
NAL/Acct. No: 200932380002
Jocelyn Edwards )
FRN: 0018 1266 31
Brooklyn, New York )
)
)
FORFEITURE ORDER
Adopted: October 19, 2009 Released: October 21, 2009
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 ten thousand dollars ($10,000) to Jean Clerveau
("Clerveau") and Jocelyn Edwards ("Edwards") for willfully and
repeatedly violating Section 301 of the Communications Act of 1934, as
amended ("Act"), by providing services and facilities incidental to
the operation of an unlicensed radio transmitter on the frequency 90.5
MHz in Brooklyn, New York. In this Order, we consider Clerveau's and
Edwards' claim that the unlicensed broadcast station operated from a
building across the street from them and not from their apartment
building.
II. BACKGROUND
2. On March 9, 2008, in response to an interference complaint, a
Commission agent, using a mobile direction-finding vehicle, monitored
the frequency 90.5 MHz in Brooklyn, New York. The agent observed a
radio station broadcasting on 90.5 MHz and determined that the station
was operating from an apartment building at 120 E. 19th Street in
Brooklyn, New York. The agent subsequently 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. The agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 90.5 MHz in Brooklyn, New York.
The agent returned to 120 E. 19th Street the next day and observed an
antenna on the roof of the apartment building and a coaxial cable
going from the antenna into a second floor window in the rear of the
building.
3. An agent again monitored the frequency 90.5 MHz on April 5 and 6,
2008, and both times determined that a radio station was broadcasting
from 120 E. 19th Street in Brooklyn, NY. The agent took field strength
measurements and determined that the signals being broadcast on April
5 and April 6, 2008, exceeded the limits for operation under Part 15
of the Rules and therefore required a license. The agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 90.5 MHz in Brooklyn, New York.
4. On April 11, 2008, agents returned to the apartment building at 120 E.
19th Street in Brooklyn, NY and met with the building superintendent,
who advised the agents that the antenna coaxial cable was going into
apartment 2E, which was leased to Jocelyn Edwards and Jean Clerveau.
Agents subsequently confirmed with the owners of the building that
Edwards and Clerveau are the lessees of apartment 2E.
5. On April 15, 2008, the New York Office sent, via regular mail and
certified mail, return receipt requested, a NOUO addressed to Clerveau
and Edwards at 120 E. 19th Street, Brooklyn, New York 11226. The NOUO
warned Clerveau and Edwards that operation of the unlicensed radio
station on 90.5 MHz violates Section 301 of the Act and outlined the
potential penalties for such a violation, including seizure of the
equipment, fines and imprisonment. The NOUO also directed Clerveau and
Edwards to terminate operation of the unlicensed station immediately
and provided Clerveau and Edwards ten days to reply.
6. On April 16, 2008, Commission agents went to 120 E. 19th Street, in
Brooklyn to conduct a follow-up inspection. Agents still observed a FM
broadcast antenna on the roof of the building and the antenna coaxial
cable going into the same window that the building superintendent
previously had identified as apartment 2E. The agents knocked on the
door of apartment 2E and identified themselves to a woman who answered
the door. In response to questions from the agents, the woman said
that the apartment belongs to Clerveau and Edwards and that they were
not home and that she did not have a telephone number to contact them.
The woman told the agents that they should come back the next morning
when Clerveau would be home. The agents gave the woman a copy of the
NOUO and asked her go give it to Clerveau and Edwards.
7. On April 17, 2008, Commission agents again returned to 120 E. 19th
Street to conduct a follow-up investigation. The agents attempted to
conduct an inspection at apartment 2E with Clerveau and Edwards, but
no one answered when the agents knocked on the door. When leaving the
building, the agents noted that the FM broadcasting antenna that
previously had been on the roof had been removed.
8. Agents returned to 120 E. 19th Street on June 7, 2008, to interview
Jean Clerveau and Jocelyn Edwards. Agents spoke to Clerveau, who
stated that he was not aware of a radio station operating from his
apartment, but that other individuals live in the apartment with him
and Edwards. Agents did not observe any radio station equipment in the
apartment at that time. In response to questions from agents, Clerveau
reported that he is responsible for providing electricity to the
apartment.
9. On October 24, 2008, the New York Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000
jointly to Clerveau and Edwards for providing services and facilities
incidental to the operation of an unlicensed radio transmitter on the
frequency 90.5 MHz in Brooklyn, New York in violation of Section 301
of the Act. In their response, Clerveau and Edwards deny having a
radio station in their apartment and claim that the radio station is
operated from a building across the street.
III. DISCUSSION
10. 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 ("Forfeiture
Policy Statement"). In examining Clerveau's and Edwards' 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. As discussed below, we have examined Clerveau's
and Edwards' response to the NAL pursuant to the aforementioned
statutory factors, our rules, and the Forfeiture Policy Statement, and
find that a $10,000 forfeiture is warranted.
11. We decline to cancel the proposed forfeiture based merely on
Clerveau's and Edwards' claim that an unlicensed station was not
operating from their apartment but instead was operating from a
building across the street. Section 301 of the Act requires that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United States
except under and in accordance with the Act and with a license.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Using mobile
direction finding equipment, agents determined that, on March 9, 2008,
April 5, 2008, and April 6, 2008, an unlicensed radio station was
broadcasting on 90.5 MHz from 120 E. 19th Street, Apartment 2E,
Brooklyn, New York 11226. The building superintendant confirmed that
the coaxial cable connected to the roof antenna was going into the
window of apartment 2E. Because Clerveau and Edwards are the lessees
of apartment 2E and Clerveau is responsible for the electricity in
apartment 2E, they are jointly liable for the unlicensed operation as
the individuals who provided services and facilities incidental to the
transmission of unlicensed communications by radio. Absent evidence
that FCC agents' direction findings and field strength measurements
were in error, we stand by our agents' determination that an
unlicensed broadcast station was operating from apartment 2E at 120 E.
19th Street in Brooklyn, NY.
12. We have examined Clerveau's and Edwards' 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 Clerveau
and Edwards repeatedly violated Section 301 of the Act. Considering
the entire record and the factors listed above, we find that
cancellation or reduction of the proposed $10,000 forfeiture is not
warranted.
IV. ORDERING CLAUSES
13. 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, Jean Clerveau and
Jocelyn Edwards ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY
FORFEITURE in the amount of $10,00 for repeatedly violating Section
301 of the Act.
14. 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.
Clerveau and Edwards shall also send electronic notification on the
date said payment is made to NER-Response@fcc.gov
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Clerveau and
Edwards at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
We are correcting in this Order the misspelling of Clearveau's and
Edwards' names in the underlying Notice of Apparent Liability for
Forfeiture.
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. Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed Part 15
transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932380002
(Enf. Bur., New York Office, rel. October 24, 2008).
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).
47 U.S.C. S: 153(33).
We note that we agree with Clerveau's and Edwards' claim that the agents
did not find any radio station equipment when they inspected apartment 2E
on June 7, 2008; by that time, the antenna had been removed from the roof
of the apartment building and the agents did not expect to find any
equipment in the apartment. The absence of radio station equipment in
their apartment on June 7, 2008, however, is not relevant to whether an
unlicensed radio station operated from Clerveau's and Edwards' apartment
on March 9, 2008, April 5, 2008, and April 6, 2008.
See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793 (EB 2006) (finding
that Craig, who provided the garage and real property on which the
operation took place, and provided the electric current used to power the
radio station, participated in the operation of the unlicensed station).
To the extent Clerveau and Edwards claim that other individuals were
living in their apartment, we note that we have previously held that
because Section 301 of the Act provides that "no person shall use or
operate" radio transmission equipment, liability for unlicensed operation
may be assigned to any individual taking part in the operation of the
unlicensed station, regardless of who else may be responsible for the
operation. See Jean L. Senatus, 20 FCC Rcd 14418 (EB 2005).
FCC agents receive extensive training on how to use professional radio
direction-finding equipment. Agents are specially trained on how to
confirm accurate radio bearings on signal sources in congested areas. In
this case, the accuracy of the results is further supported by the fact
that the same signal source was identified multiple times.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a),
73.1560(a), 73.1745(a), 73.3526(e)(12).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2239
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Federal Communications Commission DA 09-2239