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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File Number: EB-10-BS-0050
In the Matter of )
NAL/Acct. No.:
Robert Brown ) 201132260002
Boston, Massachusetts ) FRN: 0020036992
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 1, 2010 Released: October 1, 2010
By the District Director, Boston Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Robert Brown ("Brown") willfully and repeatedly violated section
301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed transmitter on the frequency 99.7 MHz in the
Mattapan neighborhood of Boston, Massachusetts. Based on our review of
the facts and circumstances of this case, we find that Brown is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On October 5, 2009, in response to a complaint from a licensed
broadcaster, agents from the Enforcement Bureau's Boston Office
("Boston Office") monitored 99.7 MHz in Boston, Massachusetts. The
agents used direction-finding techniques to locate the source of the
signal on 99.7 MHz to a two-story, multi-family dwelling at 61 Ormond
Street in the Mattapan neighborhood of Boston, Massachusetts. They
observed an antenna mounted on the roof of the building with a coaxial
cable leading to a basement window. The agents then took field
strength measurements and determined that the broadcast signals
exceeded the limits for operation under Part 15 of the Commission's
rules ("Rules") and therefore required a license. A review of the
Commission's records revealed that there was no FCC authorization to
operate a radio station on 99.7 MHz in the Mattapan neighborhood of
Boston, Massachusetts.
3. After taking the field strength measurements, the agents approached
the building at 61 Ormond Street and were met by one of the residents,
who led them to the basement. In the basement,
the agents observed radio station equipment, which included an RF
amplifier, an FM modulator with a front panel display reading 99.7
MHz, and a power supply. Before leaving, agents left an on-scene
Notice of Unlicensed Operation ("NOUO") in the mail slot identified by
the resident as belonging to the building owner.
4. Shortly thereafter, the office assistant for the Boston Office
contacted the agents and explained that a man named Lloyd Morris
("Morris") called and asked to meet the agents at 61 Ormond Street.
The agents returned to 61 Ormond Street and were met by Morris and
Brown. Both men admitted to being the owners and operators of the
station. The agents handed Morris a NOUO, which warned that operation
of the unlicensed radio station on 99.7 MHz violated section 301 of
the Act. Furthermore, the NOUO outlined the potential penalties for
such a violation, including seizure of the equipment, fines, and
imprisonment. The NOUO also directed Morris to terminate operation of
the unlicensed station immediately. Finally, the agents explained
verbally both to Morris and Brown the penalties associated with
continued operation of an unlicensed station. Morris and Brown agreed
to shut off the transmitter. When the agents left the scene, they
confirmed that the station was off the air.
5. On October 15, 2009, the Boston Office issued NOUOs to Morris and
Brown for unlicensed operation on 99.7 MHz in the Mattapan
neighborhood of Boston, Massachusetts. Each NOUO was sent via
certified mail and regular mail to the home addresses of Morris and
Brown as identified by the driver's licenses they provided to the
agents during the inspection on October 5, 2009. The copy of the NOUO
sent by certified mail to Morris was returned unclaimed, but the copy
sent by regular mail was not. A receipt for the NOUO sent via
certified mail to Brown was received on October 20, 2009. No written
or verbal response to the NOUO was received from either Morris or
Brown.
6. On February 11, 2010, agents observed a signal on 99.7 MHz in Boston,
Massachusetts following a report from the same complainant that the
station had resumed operations. The agents used direction-finding
techniques to locate the source of the signal on 99.7 MHz to the same
two-story multi-family dwelling at 61 Ormond Street in the Mattapan
neighborhood of Boston, Massachusetts. They observed an antenna
mounted on the roof of the building with a coaxial cable leading to a
basement window. Again, the agents took field strength measurements
and determined that the broadcast signals exceeded the limits for
operation under Part 15 of the Rules and therefore, the station
required a license. A review of the Commission's records revealed that
Brown did not have a license for the operation of a radio station on
99.7 MHz in the Mattapan neighborhood of Boston, Massachusetts. The
agents attempted to conduct an inspection, but no one answered the
door.
III. DISCUSSION
7. 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.
8. 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.
Agents determined that an unlicensed radio station operated on 99.7
MHz from 61 Ormond Street in the Mattapan neighborhood of Boston,
Massachusetts, on October 5, 2009 and on February 11, 2010. Morris and
Brown met with agents at 61 Ormond Street on October 5, 2009, and
identified themselves as the station's owners and operators.
Notwithstanding the issuance of an on-scene NOUO and a verbal warning
at the inspection on October 5, 2009, as well as a written NOUO sent
by regular and certified mail on October 15, 2009, the station was
found operating again on February 11, 2010. Brown operated a radio
station without the requisite Commission authorization. Because Brown
operated the station knowingly, we find that the violation of section
301 of the Act was willful. Because the operation took place on more
than one day, we find that the violation was repeated.
9. 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 that an upward adjustment in the forfeiture
amount is warranted because Brown operated an unlicensed radio station
with full knowledge that such activity violated the Act and the Rules.
Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Brown
is apparently liable for a forfeiture in the amount of fifteen
thousand dollars ($15,000).
IV. ORDERING CLAUSES
10. 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 Rules, Robert Brown is hereby NOTIFIED of his
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen thousand
dollars ($15,000) for violations of section 301 of the Act.
11. 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, Robert Brown SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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. Robert Brown shall also send electronic
notification to NER-Response@fcc.gov on the date said payment is made.
13. 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,
Northeast Region, Boston Office, 1 Batterymarch Park, Quincy, MA 02169
and must include the NAL/Acct. No. referenced in the caption. The
statement shall also be emailed to NER-Response@fcc.gov.
14. 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.
15. 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 Robert Brown at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director
Boston Office
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.
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 e.g., 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.
7 47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 1.80(b)(4).
A Notice of Apparent Liability for Forfeiture is also being issued on this
date to Lloyd Morris. See Lloyd Morris, Notice of Apparent Liability for
Forfeiture, DA 10-1907 (Enforcement Bureau, Boston Office, rel. October 1,
2010).
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 10-1908
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Federal Communications Commission DA 10-1908