Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                            )                               
                                                            
                            )                               
                                                            
     In the Matter of       )   File Number: EB-09-MA-0089  
                                                            
     Christopher M. Myers   )   NAL/Acct. No: 201032600003  
                                                            
     Lauderhill, Florida    )   FRN: 0020022315             
                                                            
                            )                               
                                                            
                            )                               


   MEMORANDUM OPINION AND ORDER

   Adopted: July 21, 2011 Released: July 21, 2011

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Memorandum Opinion and Order ("MO&O"), issued pursuant to
       section 405 of the Communications Act of 1934, as amended ("Act"), we
       deny in part and grant in part the Petition for Reconsideration
       ("Petition") filed by Christopher M. Myers ("Mr. Myers") in response
       to the Forfeiture Order issued by the Enforcement Bureau's South
       Central Region on September 13, 2010. The Forfeiture Order imposed a
       monetary forfeiture in the amount of $10,000 for Mr. Myers's willful
       and repeated violation of section 301 of the Act, involving Mr.
       Myers's operation of an unlicensed radio transmitter on the frequency
       95.9 MHz in Lauderhill, Florida. For the reasons set forth below, we
       deny in part and grant in part the Petition and reduce the forfeiture
       to $5,000.

   II. BACKGROUND

    2. On July 12, 2010, the Enforcement Bureau's Miami Office ("Miami
       Office") issued a Notice of Apparent Liability for Forfeiture ("NAL") 
       to Mr. Myers for operation of an unlicensed radio station on the
       frequency 95.9 MHz, which was affirmed in the Forfeiture Order. As
       discussed in the NAL and referenced in the Forfeiture Order, agents
       from the Miami Office determined that Mr. Myers, despite receipt of a
       Notice of Unlicensed Operation, continued to operate an unlicensed
       station on 95.9 MHz from his residential condominium in Lauderhill,
       Florida. In the Petition, Mr. Myers requests cancellation or reduction
       of the proposed forfeiture based on his claims that he did not operate
       the unlicensed station and that he was unable to pay the $10,000
       forfeiture.

    3. Specifically, Mr. Myers asserts that: (1) although he owns the
       residential condominium referenced in the NAL, the condominium was
       occupied and controlled by a renter from 2007 until 2010 and that he
       resided elsewhere during that period; (2) although he was present in
       the condominium during the inspection on March 7, 2010, the
       transmitter was not transmitting at that time; (3) after he received
       notice of the unlicensed operation, he took affirmative steps to
       terminate the lease with the unidentified renter; (4) a broadcasting
       outfit known as WBIG is responsible for any unlicensed operations on
       95.9 MHz and 91.7 MHz; and (5) he does not hold any pecuniary interest
       in WBIG.

   III. DISCUSSION

    4. The forfeiture amount in this case was assessed in accordance with
       section 503(b) of the Act, section 1.80 of the Commission's rules
       ("Rules"), and the Commission's Forfeiture Policy Statement. In
       examining the Petition, 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
       grant in part and deny in part the Petition, and reduce the forfeiture
       based on Mr. Myers's documented inability to pay.

    5. First, we do not find Mr. Myers's statement that he did not reside in
       the residential condominium reliable. Mr. Myers's driver's license and
       most recent vehicle registration list the condominium as his
       residence. Mr. Myers received and signed for a NOUO and the NAL at the
       condominium. We believe this demonstrates that Mr. Myers did in fact
       reside in the condominium. Moreover, Mr. Myers's assertion directly
       contradicts his statement to Lauderhill police on March 7, 2010 that
       he had moved back into the condominium "four months or so ago."
       Therefore, by his own admission, Mr. Myers resided in the condominium
       from December 2009 to March 2010, a period of time covering when the
       unlicensed station was in operation (February 4, 2010, and March 7,
       2010). Thus, we find no reason to cancel or reduce the forfeiture on
       this basis.

    6. Second, we disagree with Mr. Myers's statement that the station was
       not transmitting on March 7, 2010. At approximately 6:50 P.M. on March
       7, 2010, agents from the Miami Office determined that an unlicensed
       station was operating from the condominium. The Lauderhill Police
       Department executed a search warrant for the condominium at
       approximately 10:00 P.M. and found only Mr. Myers present. After
       observing the unlicensed station on the air at 10:41 P.M., agents from
       the Miami Office entered the condominium at approximately 10:50 P.M.,
       observed the transmitting equipment, and found only Mr. Myers and the
       Lauderhill police present. The unlicensed station continued to
       transmit until FCC agents disconnected the transmitter, which was
       located in the residence, at approximately 11:10 P.M. Thus, Mr. Myers
       was present in the condominium when the unlicensed station was
       operating on March 7, 2010.

    7. Third, we also do not find that Mr. Myers's alleged uncorroborated
       steps to terminate the lease with a renter for the condominium after
       he received the NOUO warrant mitigation of the forfeiture. As stated
       above, we believe Mr. Myers resided in the condominium before and
       after the NOUO was issued. However, even if he took such steps, the
       Commission has long held that post-notification corrective action
       taken to come into compliance with the Rules is expected, and does not
       nullify or mitigate any prior forfeitures or violations. Moreover,
       even if the uncorroborated lease existed, as stated above, Mr. Myers
       admitted to the Lauderhill police that he resided in the condominium
       from December 2009 to March 2010 and that he knew the equipment was
       located in the condominium. Therefore, based on his admissions alone,
       the Bureau could have found Mr. Myers in willful and repeated
       violation of the Act.

    8. Fourth, whether WBIG is also associated with the unlicensed station
       and whether Mr. Myers owns an interest in WBIG have no bearing on our
       determination as to Mr. Myers's operation of the unlicensed station.
       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. 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." That is, 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 radio stations generally. To
       determine whether an individual is involved in the general conduct or
       management of the station, we look to, among other things, 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."

    9. Mr. Myers admitted to the Lauderhill police that he was aware the
       transmitting equipment was located in the condominium, but he asserted
       that he did not know what the equipment was used for and that the
       previous tenant had brought it into the unit. Assuming, arguendo, that
       Mr. Myers did not technically operate the radio station equipment in
       his residence and was originally unaware of the nature of the
       equipment, once he received the NOUO he had the opportunity to
       evaluate all unknown electronic equipment in his residence and ensure
       that operation did not continue. On March 7, 2010, agents from the
       Miami Office observed a coaxial cable that connected a roof-mounted
       antenna on the condominium building to an FM radio transmitter
       operating on the frequency 95.9 MHz located inside Mr. Myers's
       residence. Mr. Myers was the only person present in the residence,
       besides the Lauderhill police, on March 7, 2010 when the station was
       in operation. Therefore, at a minimum, Mr. Myers allowed the radio
       station equipment to remain in a residential space under his control
       and could have removed or unplugged the equipment at any time. Thus,
       Mr. Myers exercised control over the station which qualifies as
       operation under section 301 of the Act. Based on the evidence before
       us, we uphold our finding that Mr. Myers is liable under section 301
       of the Act for the willful and repeated operation of an unlicensed
       radio station.

   10. Finally, with regard to an individual's or entity's inability to pay
       claim, the Commission has determined that, in general, gross revenues
       are the best indicator of an ability to pay a forfeiture. Having
       reviewed Mr. Myers's submitted documentation, we conclude that the
       forfeiture should be reduced to $5,000 based on his documented
       inability to pay the forfeiture amount. Accordingly, finding that Mr.
       Myers operated an unlicensed radio station and is unable to pay the
       full proposed forfeiture amount, we grant in part and deny in part the
       Petition and reduce the forfeiture to $5,000.

   IV. ORDERING CLAUSES

   11. Accordingly, IT IS ORDERED, pursuant to section 405 of the
       Communications Act of 1934, as amended, and section 1.106 of the
       Rules, that the Petition for Reconsideration filed by Christopher M.
       Myers  IS GRANTED IN PART AND DENIED IN PART.

   12. IT IS ALSO ORDERED that, pursuant to section 503(b) of the Act, and
       sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Christopher M.
       Myers IS LIABLE FOR A MONETARY FORFEITURE in the amount of five
       thousand dollars ($5,000) for violations of section 301 of the Act.

   13. 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
       Memorandum Opinion and 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 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. Myers shall also send electronic
       notification to SCR-Response@fcc.gov on the date said payment is made.

   14. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
       sent by both regular mail and by certified mail, return receipt
       requested, to Christopher M. Myers at his address of record and to his
       attorney, Kenneth S. Mair, Esq., Mair, Mair & Associates P.A., 3500
       North State Road 7, Suite 479, Fort Lauderdale, FL 33319.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   47 U.S.C. S: 405.

   Although Mr. Myers captioned his pleading as an "Answer to Notice of
   Apparent Liability for Forfeiture" and it was dated within the timeframe
   for response, due to misrouting by the U.S. Post Office, the pleading was
   not received by the Miami Office until September 29, 2010, after release
   of the Forfeiture Order. Accordingly, we have treated Mr. Myers's pleading
   as a petition for reconsideration of the Forfeiture Order. See Letter from
   Kenneth S. Mair, Esq., Counsel to Mr. Myers, to Miami Office (August 11,
   2010) ("Petition").

   Christopher M. Myers, Forfeiture Order, 25 FCC Rcd 13032 (Enf. Bur. South
   Central Region, 2010) ("Forfeiture Order").

   47 U.S.C. S: 301.

   Christopher M. Myers, Notice of Apparent Liability for Forfeiture, 25 FCC
   Rcd 9069 (Enf. Bur. Miami Office, 2010) ("NAL").

   On August 14, 2008, the Miami Office issued a Notice of Unlicensed
   Operation ("NOUO") to Mr. Myers for his unlicensed operation of an FM
   broadcast station on the frequency 91.7 MHz from his residential
   condominium in Lauderhill, Florida. The NOUO warned that unlicensed
   operation of a radio station violated the Act and the Rules and that
   continued operation could subject the operator to further enforcement
   action.

   Petition at 2-3.

   Id.

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

   47 C.F.R. S: 1.80.

   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 U.S.C. S: 503(b)(2)(E).

   The Lauderhill police department conducted surveillance at the condominium
   building several nights before March 7, 2010 and observed Mr. Myers's
   vehicle parked in front each night, thereby corroborating that Mr. Myers
   did indeed reside at the condominium in March 2010.

   See Supplemental Report of Detective Charles Smith, Lauderhill Police
   Department, Criminal Investigations Division dated March 25, 2010 ("Police
   Report").

   We note that the renter named in the Petition does not match the first
   name of the renter provided to the Lauderhill police during Mr. Myers's
   interview on March 7, 2010.

   See e.g., International Broadcasting Corporation, Order on Review, 25 FCC
   Rcd 1538, 1540, para. 6 (2010); Seawest Yacht Brokers, Forfeiture Order, 9
   FCC Rcd 6099 (1994); Rama Communications, Inc., Memorandum Opinion and
   Order, 24 FCC Rcd 4981 (Enf. Bur. 2009); Bethune-Cookman College, Inc..
   Forfeiture Order, 24 FCC Rcd 4513 (South Central Region 2009).

   47 U.S.C. S: 301.

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

   See Campbell v. U.S., 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 47 U.S.C S: 307(c)(1).

   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).

   See Police Report.

   See PJB Communications of Virginia, Inc., Forfeiture Order, 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., Forfeiture Order, 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, Forfeiture
   Order, 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: 405.

   47 C.F.R. S: 1.106.

   47 U.S.C. S:S: 301, 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 11-1217

   Federal Communications Commission DA 11-1217

   5