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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File No: EB-08-TP-0342
)
Frankie Grover NAL/Acct. No.: 200932700006
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Lakeland, Florida FRN: 0019037555
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)
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FORFEITURE ORDER
Adopted: October 30, 2009 Released: November 3, 2009
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 two thousand five hundred dollars ($2,500) to Frankie
Grover for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violations
involve Mr. Grover's operation of an unlicensed radio transmitter on
the frequency 87.9 MHz in Lakeland, Florida.
II. BACKGROUND
2. On October 2, 2008, in response to a complaint that Mr. Grover was
operating an unlicensed radio station in Lakeland, Florida, agents
from the Commission's Tampa Office of the Enforcement Bureau ("Tampa
Office"), used direction finding techniques, to locate the source of
broadcast transmissions on 87.9 MHz to the Kingston Lakeside Inn
("Lakeside Inn") in Lakeland, Florida. 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 Commission
records, neither Mr. Grover, nor any other person or entity, holds an
authorization to broadcast on that frequency from any location in the
state of Florida.
3. While monitoring the station on October 2, 2008, agents from the Tampa
Office heard the station air a callsign of WGBC FM. This callsign is
not listed in the Commission's databases. Also on October 2, 2008, the
agents observed a vehicle registered to Mr. Grover parked in the
driveway of his home with a personalized license tag of "WGBC 1." The
vehicle contained advertising on the rear window for the "Frankie
Grover Morning Show" for "WGBC FM.BIZ." The advertisement listed the
address of the Lakeside Inn in Lakeland, Florida where the unlicensed
radio station was found earlier in the day.
4. On October 3, 2008, agents from the Tampa Office visited WGBC's
webpage, http://www.wgbcfm.biz/, which lists Mr. Grover as the CEO of
WGBCFM. The website also listed daily show times for different DJ's
including the "Frankie Grover Morning Show" from 7-10 am Monday
through Friday.
5. On October 7, 2008 and again on November 6, 2008, agents from the
Tampa Office, using direction finding techniques, located the source
of unidentified broadcast transmissions on 87.9 MHz to the Lakeside
Inn located in Lakeland, Florida. 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. According to Commission records, neither Mr.
Grover, nor any other person or entity, holds an authorization to
broadcast on that frequency from any location in the state of Florida.
6. During the morning of November 7, 2008, agents from the Tampa Office
observed that the unlicensed radio station was broadcasting on 87.9
MHz from the Lakeside Inn in Lakeland, Florida and heard an individual
identify himself as Frankie Grover during the "Frankie Grover Morning
Show." The agents inspected the radio station and interviewed Mr.
Grover, who admitted that he was solely responsible for setting up and
operating the broadcast station on 87.9 MHz. Mr. Grover admitted he
did not have a license to operate on 87.9 MHz but stated that on an
unspecified date and time he spoke to an unidentified person at the
FCC who told him it was okay to broadcast as long as no one complained
and there was no interference.
7. On August 18, 2009, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Grover in the amount of ten thousand
dollars ($10,000), for the apparent willful and repeated violation of
Section 301 of the Act. Mr. Grover submitted a response to the NAL
requesting reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
8. 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, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Mr. Grover'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.
9. 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 October 2 and 7, and
November 6 and 7, 2008, agents from the Tampa Office observed an
unlicensed radio station operating on 87.9 MHz from the Lakeside Inn
in Lakeland, Florida. The station identified itself on the air and
advertised itself as WGBC. Station advertisements and materials stated
that Mr. Grover broadcast a radio program on the station and was the
station CEO. Mr. Grover admitted that he was solely responsible for
setting up and operating the radio station, which did not have a
license, from the Lakeside Inn.
10. In his response to the NAL, Mr. Grover again admits that he operated a
radio station on 87.9 MHz from Lakeland, Florida, but states that he
did not intend to violate the Rules. Mr. Grover states that he thought
he was operating a low power FM station pursuant to Part 15 of the
Rules. However, because he did not use equipment certified for Part 15
use, Mr. Grover states he was unaware that his station exceeded the
allowable Part 15 output power. Mr. Grover also states he had no way
to verify that his equipment was set at the proper output power.
11. Although Mr. Grover states he believed no license was necessary to
operate his station, that belief was mistaken. Part 15 of the Rules
sets forth conditions under which intentional radiators may operate
without an individual license. However, if intentional radiators fail
to comply with all of the applicable conditions set forth in Part 15
of the Rules, they are not authorized to operate in the United States
without a license. Mr. Grover admits that he did not use a transmitter
certified for Part 15 use and that he exceeded the allowable Part 15
output power. Accordingly, his operations were not consistent with the
requirements of Part 15 and were unlicensed. Moreover, his belief that
his actions did not violate the Act is irrelevant as to whether his
violation was willful, as he intentionally operated the station. Thus,
based on the evidence before us, we find that Mr. Grover willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission apparatus without a license on October 2 and 7, and
November 6 and 7, 2008.
12. Finally, Mr. Grover requests a reduction of the forfeiture, saying the
forfeiture would pose a financial hardship. With regard to an
individual's or entity's inability to pay, the Commission has
determined that, in general, gross revenues are the best indicator of
an ability to pay a forfeiture. We have reviewed Mr. Grover's
documentation and conclude that the forfeiture should be reduced to
$2,500, based on Mr. Grover's documented inability to pay the
forfeiture.
13. We have examined Mr. Grover'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 reduce the proposed
forfeiture to $2,500, based on Mr. Grover's inability to pay.
IV. ORDERING CLAUSES
14. 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, Frankie Grover IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand five hundred dollars
($2,500) for violations of Section 301 of the Act.
15. 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.
Mr. Grover will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Frankie Grover 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
30-88 MHz band is permitted only if the field strength of the transmission
does not exceed 100 mV/m at three meters. 47 C.F.R. S: 15.239. The
measurements made on October 2, 2008, indicated that the signal was 3,942
times greater than the maximum permissible level for a non-licensed Part
15 transmitter.
The measurements made on October 7, 2008, indicated that the signal was
5,221 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter and the measurements made on November 6, 2008,
indicated that the signal was 5,157 times greater than the maximum
permissible level for a non-licensed Part 15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932700006
(Enf. Bur., Tampa Office, August 18, 2009) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
Response to NAL at 1.
Id.
Id.
We note that Mr. Grover was familiar with the Commission's rules regarding
broadcast stations, as he was formerly the President of AM Station WHNR,
facility ID 21766, Cypress Gardens, Florida.
See 47 C.F.R. S:S: 15.1 et seq.
47 C.F.R. S: 15.1(b). ("operation of an intentional or unintentional
radiator that is not in accordance with the regulations in this part must
be licensed pursuant to the provisions of section 301 of the
Communications Act...").
See 47 C.F.R. 15.201(b) ("all intentional radiators operating under [Part
15] shall be certificated by the Commission...").
See 47 C.F.R. S: 15.239 and notes 2 and 3 supra.
The Commission has consistently stated that ignorance of the law is not a
mitigating factor. Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387 (1991), citing Vernon Broadcasting,
Inc., Memorandum Opinion and Order, 60 RR 2d 1275, 1277 (1986) and Fay
Neel Eggleston, Memorandum Opinion and Order, 19 FCC 2d 829 (1969).
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', when used with reference to the
commission or omission of any act, 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).
As provided by 47 U.S.C. S: 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).
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).
In his response to the NAL, Mr. Grover also requested to pay the
forfeiture in installments. Mr. Grover should follow the procedures
specified in paragraph 15 infra for requesting full payment under an
installment plan.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2365
2
Federal Communications Commission DA 09-2365