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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                                )                                
                                                                 
                                )                                
                                                                 
                                )                                
                                                                 
     In the Matter of           )                                
                                    File Number: EB-09-NY-0300   
     Mark Nierman and           )                                
                                    NAL/Acct. No.: 201032380005  
     Kakadu Productions, Inc.   )                                
                                    FRN: 0019 3494 71            
     Brooklyn, New York         )                                
                                                                 
                                )                                
                                                                 
                                )                                
                                                                 
                                )                                


                                FORFEITURE ORDER

   Adopted: June 10, 2010 Released: June 14, 2010

   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 four thousand five hundred dollars ($4,500) jointly and
       severally to Mark Nierman ("Nierman") and Kakadu Productions, Inc.
       ("Kakadu"), for willfully and repeatedly violating Section 301 of the
       Communications Act of 1934, as amended ("Act"), by operating an
       unlicensed radio station on the frequency 99.9 MHz in Brooklyn, New
       York.

   II. BACKGROUND

    2. On October 12 and 13, 2009, in response to several complaints from
       licensed broadcasters, an agent from the Enforcement Bureau's New York
       Office ("New York Office"), using a mobile direction-finding vehicle,
       monitored the frequency 99.9 MHz in Brooklyn, New York. The agent
       determined that the source of the broadcast transmissions on 99.9 MHz
       was a radio station operating from an apartment building located at
       2814 West 8th Street, Brooklyn, New York 11224. The agent observed an
       FM broadcast antenna on top of a water tank on the roof of the
       apartment building located at 2814 West 8th Street. 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 99.9 MHz in
       Brooklyn, New York.

    3. After taking the field strength measurements on October 13, 2009, the
       agent went to the office of the building management company, Luna Park
       Housing Corporation ("Luna Park"). The agent conducted an interview
       with the Director of Operations ("Director") regarding the unlicensed
       radio station operating at 2814 West 8th Street. The Director stated
       that he was aware of the antenna on the roof of the apartment building
       (Building #3) at 2814 West 8th Street and that a five-year lease had
       been executed between Luna Park and Mark Nierman of Kakadu allowing a
       radio station to operate in the bulkhead room of Building #3 beginning
       May 30, 2009 for $6,000 per year.  The agent then returned to the
       apartment building located at 2814 West 8th Street and conducted an
       inspection of the FM broadcast antenna on top of the water tank on the
       roof with the building superintendant. The agent observed coaxial
       cable connecting the FM broadcast antenna to radio station equipment
       located inside the bulkhead room on the roof. The agent also observed
       that the radio station equipment was active and recorded information
       about the equipment. The building superintendent then shut down all
       the equipment at the agent's request.

    4. On October 16, 2009, the New York Office issued a Notice of Unlicensed
       Operation ("NOUO") to Kakadu. The NOUO warned Kakadu that operation of
       the unlicensed radio station on 99.9 MHz violated 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 Kakadu to terminate operation of the unlicensed station
       immediately and provided Kakadu ten days to reply. On October 26,
       2009, Kakadu submitted a reply to the NOUO stating that it had ceased
       operating the unlicensed radio station at 2814 West 8th Street and
       that it would comply with FCC directives in any future radio
       operations. 

    5. On January 8, 2010, the New York Office issued a Notice of Apparent
       Liability for Forfeiture ("NAL") in the amount of ten thousand dollars
       ($10,000) to Nierman and Kakadu jointly and severally for apparently
       willfully and repeatedly operating an unlicensed radio station in
       violation of Section 301 of the Act. Nierman and Kakadu jointly
       submitted a response to the NAL on February 9, 2010. In their
       response, Nierman and Kakadu do not dispute the violations identified
       in the NAL but request cancellation of the proposed forfeiture based
       on their inability to pay.

   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 ("Forfeiture Policy Statement").
       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 find that a reduction of
       the forfeiture amount from $10,000 to $4,500 based on Nierman's and
       Kakadu's inability to pay is appropriate.

    7. Section 301 of the Act states 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 granted under the provisions of the Act.
       Nierman and Kakadu do not dispute that they operated a radio station
       without a license on October 12, 2009, and October 13, 2009, on 99.9
       MHz in Brooklyn, New York. We therefore find that Nierman and Kakadu
       willfully and repeatedly operated an unlicensed station in violation
       of Section 301 of the Act.

    8. Nierman and Kakadu claim that the proposed forfeiture amount poses a
       financial hardship and request that we cancel the forfeiture. In
       support of their claim of financial hardship, Nierman and Kakadu
       submitted three years of individual and corporate tax returns. 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 Nierman's and
       Kakadu's documentation and conclude that a reduction of the forfeiture
       to $4,500 is warranted based on Nierman's and Kakadu's inability to
       pay.

   IV. ORDERING CLAUSES

    9. 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, Mark Nierman and Kakadu
       Productions, Inc. ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY
       FORFEITURE in the amount of four thousand five hundred dollars
       ($4,500) for violations of 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.
       Nierman and Kakadu also shall send electronic notification on the date
       said payment is made to NER-Response@fcc.gov.

   11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Mark Nierman and
       Kakadu Productions, Inc. at their addresses of record.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director

   Northeast 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. Measurements showed that the field strength of the station's
   signal exceeded the permissible level for a non-licensed Part 15
   transmitter.

   Mark Nierman is the sole shareholder of Kakadu Productions, Inc.

   The New York Office also issued to Luna Park a NOUO on October 16, 2009
   and a Notice of Apparent Liability for Forfeiture on January 8, 2010. See
   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032380004
   (Enf. Bur., New York Office, January 8, 2010).

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032380005
   (Enf. Bur., New York Office, January 8, 2010).

   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).

   See e.g., 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: 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 10-1054

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   Federal Communications Commission DA 10-1054