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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                               )                                
                                                                
                               )                                
     In the Matter of               File Number: EB-09-NY-0318  
                               )                                
     Vicot Chery                    NAL/Acct. No: 201132380002  
                               )                                
     Spring Valley, New York        FRN: 0019471259             
                               ))                               
                                                                
                               )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: October 21, 2010 Released: October 22, 2010

   By the District Director, New York Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Vicot Chery ("Chery") 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
       90.5 MHz in Spring Valley, New York. We conclude, pursuant to section
       503(b) of the Act, that Chery is apparently liable for a forfeiture in
       the amount of ten thousand dollars ($10,000).

   II. BACKGROUND

    2. On October 26, 28, and 29, 2009, in response to a complaint, agents
       from the Enforcement Bureau's New York Office ("New York Office")
       monitored the frequency 90.5 MHz in Spring Valley, New York. On each
       of those days, the agents observed a radio signal on 90.5 MHz and used
       direction-finding techniques to locate the source of the transmissions
       to 301 Roosevelt Avenue in Spring Valley, New York. The agents  also
       took field strength measurements on each of the three days and
       determined that the signal being broadcast 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 90.5 MHz at this location  in Spring Valley, New York.

    3. After completing the field strength measurements on October 29, 2009,
       the agents  entered 301 Roosevelt Avenue where two businesses were
       located - P.C. Taxi Services, LLC ("P.C. Taxi") and P.C. Auto Repair,
       Inc. ("P.C. Auto"). The agents proceeded to the offices of P.C. Taxi
       and spoke to the dispatcher regarding the unauthorized transmissions.
       The dispatcher said she would contact Chery, who she identified as the
       owner of P.C. Taxi. Subsequently, Chery arrived at 301 Roosevelt
       Avenue and the agents asked him about the unauthorized transmissions
       and asked to inspect the station. In response, Chery led the agents to
       an adjacent room at the P.C. Taxi location where the agents observed a
       radio station in operation. Next, Chery led the agents to the roof
       where the FM broadcast antenna for the station was located. Finally,
       Chery led the agents to the upstairs attic where the station's
       transmitter was located behind a stack of car tires and hidden from
       plain view. Chery told the agents that he was allowing a friend to use
       the space to operate the station. At the agents' request, Chery turned
       off the transmitter and the operation ceased. He also agreed to remove
       the antenna.

    4. On November 4, 2009, the New York Office issued a Notice of Unlicensed
       Operation ("NOUO"), to Chery for unlicensed operation on 90.5 MHz in
       Spring Valley, New York. The New York Office received a reply to the
       NOUO on behalf of Chery. Notwithstanding Chery's actions during the
       inspection, in the NOUO Response, Chery's attorney asserts that Chery
       "had no knowledge of the events which you have charged him with." The
       attorney goes on to state that during the two months prior to the
       agents' inspection, Chery had allowed an unspecified person to use the
       space in his businesses where the radio station was located. To date,
       Chery has not provided the agents his friend's name.

   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. For the
   purposes of section 301, the word "operate" has been interpreted to mean
   "the general conduct or management of a station as a whole, as distinct
   from the specific technical work involved in the actual transmission of
   signals." In other words, the use of the word "operate" in section 301 of
   the Act captures not just the "actual, mechanical manipulation of radio
   apparatus" but also operation of a radio station generally. To determine
   whether an individual is involved in the general conduct or management of
   the station, we can consider whether such individual exercises control
   over the station, which the Commission has defined to include ". . . any
   means of actual working control over the operation of the [station] in
   whatever manner exercised." The agents determined that, on October 26, 28,
   and 29, 2009, an unlicensed radio station was operating on 90.5 MHz from
   301 Roosevelt Avenue in Spring Valley, New York within a building leased
   by Chery for the operation of his businesses. As discussed more fully
   below, we find that Chery is apparently liable for operating the
   unlicensed radio station on 90.5 MHz because he demonstrated control over
   the management of the station as a whole.

   7. Together, the facts show that Chery had control of the station and was
   involved in the general conduct or management of the station. When asked
   about the unauthorized transmissions during the inspection on October 29,
   2009, Chery immediately led the agents to a locked room at the P.C. Taxi
   location, which Chery owns and operates. Chery unlocked the room and the
   agents observed the radio station in operation. Chery also showed the
   agents the station's transmitter and was able to turn it off when asked to
   do so by the agents. Further, Chery took the agents to the roof of the
   building where the station's antenna was located and agreed to remove the
   antenna from the roof top. The fact that someone else also may have been
   involved in the station's operation does not make Chery any less of a
   participant in the station's operation. 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. Based on the evidence before us, we find that Chery apparently
   willfully and repeatedly violated section 301 of the Act by operating a
   radio station on 90.5 MHz in Spring Valley, New York without the requisite
   Commission authorization.

   8. Pursuant to the  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. Applying the Forfeiture Policy
   Statement, section 1.80, and the statutory factors to the instant case, we
   conclude that Vicot Chery is apparently liable for a forfeiture in the
   amount of $10,000.

   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, and
   1.80 of the Rules, Vicot Chery is hereby NOTIFIED of this APPARENT
   LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000)
   for violations of section 301 of the Act.

   10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
   within thirty (30) days of the release date of this Notice of Apparent
   Liability for Forfeiture, Vicot Chery 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 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[s] 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. Vicot
   Chery shall also send electronic notification to NER-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, Northeast Region,
   New York Office, 201 Varick Street, Suite 1151, New York, NY 10014, and
   must include the NAL/Acct. No. referenced in the caption. The statement
   shall also be emailed to NER-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 Vicot Chery at his address of record and
   to counsel for Vicot Chery at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Daniel W. Noel

   District Director

   New York Office

   Northeast Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   47 U.S.C. S: 503(b).

   A listener of non-commercial educational FM station WFUV, located at
   Fordham University in Bronx, New York, filed a complaint alleging
   interference from an illegal broadcast station operating on 90.5 MHz in
   Spring Valley, New York.

   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 micro volts per meter ("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.

   Agents determined that Vicot Chery is the owner and operator of P.C. Taxi
   and P.C. Auto Repair.

   During the inspection at the P.C. Taxi location on October 29, 2009,
   agents also determined that P.C. Taxi was operating the base station for
   its private land mobile station (call sign WPSY573) from an unauthorized
   location. The New York Office issued a Notice of Violation to P.C. Taxi.
   See P.C. Taxi Services, LLC, Notice of Violation, V201032380001, released
   November 5, 2009.

   See Letter from Mitchell P. Schecter, Counsel for Vicot Chery, to Gary
   Barker, New York Office, Northeast Region, Enforcement Bureau, dated
   November 12, 2009 ("NOUO Response").

   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., Memorandum Opinion and Order, 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.

   See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
   (Comparing the use of the words "operate" and "operation" in sections 301,
   307, and 318 of the Act and concluding that the word "operate" as used in
   section 301 of the Act means both the technical operation of the station
   as well as the general conduct or management of the station).

   Id.

   Id. See also 47 U.S.C S: 307(c)(1).

   See Revision of Rules and Policies for the Direct Broadcast Satellite
   Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
   FCC, 110 F.3d 816 (D.C. Cir. 1997).

   47 U.S.C. S: 301.

   Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11 (Enf. Bur.
   2005).

   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).

   47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.

   (...continued from previous page)

   Federal Communications Commission DA 10-2030

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   Federal Communications Commission DA 10-2030