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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-09-MA-0176
Nounoune Lubin ) NAL/Acct. No: 201032600004
North Miami, Florida ) FRN: 0020172136
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 1, 2010 Released: September 2, 2010
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Nounoune Lubin ("Ms. Lubin") apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
90.1 MHz in North Miami, Florida. We conclude, pursuant to Section
503(b) of Act, that Ms. Lubin is apparently liable for a forfeiture in
the amount of twenty thousand dollars ($20,000).
II. BACKGROUND
2. On September 9, 2009, and again on October 22, 2009, in response to a
complaint of an unlicensed station operating on 90.1 MHz in the North
Miami area, agents from the Enforcement Bureau's Miami Office ("Miami
Office") used direction-finding techniques to locate the source of
broadcast transmissions on 90.1 MHz to Ms. Lubin's residence in North
Miami, Florida. On September 9, 2009, 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. On October 22, 2009, the agents from the Miami
Office traced coaxial cable from an antenna mounted to a mast in the
backyard of Ms. Lubin's residence into her apartment unit. A review of
the Commission's records revealed that Ms. Lubin did not have a
license for the operation of a radio station on 90.1 MHz in North
Miami, Florida.
3. On November 6, 2009, the Miami Office issued a Notice of Unlicensed
Operation ("NOUO") to Ms. Lubin for operating an FM broadcast station
on the frequency 90.1 MHz from her residence in North Miami, Florida
without a license. The NOUO warned that unlicensed operation of a
radio station violated the Act and the Commission's rules ("Rules"),
and that continued operation could subject her to further enforcement
action. The Miami Office received a return receipt for the NOUO signed
by Ms. Lubin. We note that this is the second NOUO issued by the Miami
Office to Ms. Lubin for operation of an unlicensed FM broadcast
station on 90.1 MHz. The First NOUO, issued on March 5, 2008, involved
Ms. Lubin's unlicensed operation of a radio station from a prior
residence in North Miami, Florida.
4. On April 22, 2010, and again on May 12, 2010, agents from the Miami
Office used direction-finding techniques to locate the source of
broadcast transmissions on 90.1 MHz to Ms. Lubin's residence in North
Miami, Florida. On April 22, 2010, 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 review of the Commission's records again
revealed that Ms. Lubin did not have a license for the operation of a
radio station on 90.1 MHz in North Miami, Florida.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
6. 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. On
two separate occasions - March 5, 2008 and November 6, 2009 - Ms.
Lubin was sent a NOUO warning that unlicensed operation of a radio
station on 90.1 MHz violated the Act and could subject her to further
enforcement action, including a substantial monetary forfeiture.
Although Ms. Lubin acknowledged receipt of both NOUOs, agents from the
Miami Office determined on four occasions subsequent to the First NOUO
(September 9, 2009, October 22, 2009, April 22, 2010, and May 12,
2010), that Ms. Lubin operated an unlicensed radio station on 90.1 MHz
from her residence in North Miami, Florida. In addition, a review of
the Commission's records revealed that Ms. Lubin did not have a
license to operate a radio station on 90.1 MHz in North Miami,
Florida. Based on the facts and circumstances described above, we find
that the apparent violation was willful. Moreover, because agents
observed Lubin's unlicensed operation on four separate occasions, we
find that the apparent violation was repeated.
7. Based on the evidence before us, we find that Ms. Lubin apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment without Commission authorization on the
frequency 90.1 MHz from her residence in North Miami, Florida on
September 9 and October 22, 2009, and on April 22 and May 12, 2010.
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. We find Ms. Lubin's misconduct particularly egregious
because she operated an unlicensed radio station on several different
occasions with full knowledge that such activity violated the Act and
the Rules. Thus, we find that an upward adjustment in the forfeiture
amount is warranted. Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Ms. Lubin is apparently liable for a forfeiture in the
amount of twenty thousand dollars ($20,000).
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,
0.314, and 1.80 of the Commission's Rules, Nounoune Lubin is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty thousand dollars ($20,000) for violation of Section 301 of the
Act.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Nounoune Lubin SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Ms. Lubin shall also send electronic notification
to SCR-Response@fcc.gov on the date said payment is made.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Miami Office, PO Box 520617, Miami, FL 33152,
and must include the NAL/Acct. No. referenced in the caption. The
statement should also be emailed to SCR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Nounoune Lubin at her address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Steven DeSena
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
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 September 9, 2009, indicated that the
signal was 7,746 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
Notice of Unlicensed Operation (Enf. Bur., Miami Office, rel. March 5,
2008) ("First NOUO"). The Miami Office received a return receipt for the
First NOUO signed by Ms. Lubin.
47 C.F.R. S: 15.239. The measurements made on April 22, 2010, indicated
that the signal was 6,757 times greater than the maximum permissible level
for a non-licensed Part 15 transmitter.
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), recon. denied, 7 FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he 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: 301.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 1.80(b)(4).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 10-1671
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Federal Communications Commission DA 10-1671