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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                          )                               
                                                          
                          )                               
                                                          
     In the Matter of     )                               
                              File Number: EB-08-NY-0283  
     Andre Alleyne        )                               
                              NAL/Acct. No: 200932380003  
     Jessie White         )                               
                              FRN: 0018 1064 01           
     Brooklyn, New York   )                               
                                                          
                          )                               
                                                          
                          )                               


                                FORFEITURE ORDER

   Adopted: July 25, 2011 Released: July 26, 2011

   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 ten thousand dollars ($10,000) jointly and severally to
       Andre Alleyne ("Mr. Alleyne") and Jessie White ("Ms. White") 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 96.5 MHz in Brooklyn, New York. In this
       Order, we consider Mr. Alleyne's and Ms. White's arguments in support
       of their request to cancel the proposed forfeiture and deny each in
       turn.

   II. BACKGROUND

    2. On July 23 and 24, 2008, in response to a complaint of interference
       from a licensed FM broadcast station, agents from the Enforcement
       Bureau's New York Office ("New York Office") monitored 96.5 MHz in
       Brooklyn, New York. On each of those days, the agent observed a radio
       signal on 96.5 MHz and used direction-finding techniques to locate the
       source of the transmissions to an apartment building at 580 Flatbush
       Avenue, Brooklyn, New York 11225. 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. A review of the
       Commission's records revealed that there was no FCC authorization to
       operate a radio station on 96.5 MHz in Brooklyn, New York.

    3. After completing the field strength measurements on July 24, 2008,
       agents from the New York Office conducted an investigation on the roof
       of the building located at 580 Flatbush Avenue. The agents observed an
       FM broadcast antenna on the roof and a coaxial cable leading from the
       antenna into an apartment window on the building. The agents learned
       from the building superintendent that the coaxial cable went into the
       apartment jointly leased by Mr. Alleyne and Ms. White. When the agents
       attempted to inspect the station, the two women who answered the door
       refused to allow the agents to enter the apartment. However, one of
       the women, who was later identified as Ms. White, stated that she
       resides in the apartment with her boyfriend. The agents advised her
       that the radio station in the apartment was operating without a
       license and requested that she turn off the station. After returning
       to the vehicle, the agents monitored 96.5 MHz and noted that the
       station was off the air.

    4. On July 30, 2008, the New York Office issued a Notice of Unlicensed
       Operation ("NOUO") to Mr. Alleyne and Ms. White. The NOUO warned Mr.
       Alleyne and Ms. White that operation of the unlicensed radio station
       on 96.5 MHz violated section 301 of the Act and outlined the potential
       penalties for such a violation. The NOUO also directed Mr. Alleyne and
       Ms. White to terminate operation of the unlicensed station immediately
       and provided them ten days to reply. The New York Office did not
       receive a response to the NOUO.

    5. On October 30, 2008, an agent from the New York Office returned to 580
       Flatbush Avenue and met with the building superintendent, who reported
       that Mr. Alleyne contacted him shortly after the agent's investigation
       on July 24, 2008, regarding the antenna on the roof. The
       superintendant explained that he accompanied Mr. Alleyne to the roof
       that day so that Mr. Alleyne could remove the antenna. The agent went
       to the roof with the superintendent and confirmed that the antenna
       previously observed on July 23 and 24, 2008 had been removed.

    6. On December 10, 2008, the New York Office issued a Notice of Apparent
       Liability for Forfeiture ("NAL") in the amount of $10,000 to Mr.
       Alleyne and Ms. White for operating an unlicensed radio station on the
       frequency 96.5 MHz in Brooklyn, New York. In their response to the
       NAL, Mr. Alleyne and Ms. White do not dispute the findings in the NAL,
       but request that we cancel the proposed forfeiture because (1) they
       allowed a friend to operate the station from their apartment; (2) they
       believed the radio station complied with all FCC regulations; (3) they
       ceased operating the station as soon as they became aware that it was
       illegal; and (4) they do not have the financial resources to pay the
       forfeiture.

   III. DISCUSSION

    7. The proposed forfeiture amount in this case was assessed in accordance
       with section 503(b) of the Act, section 1.80 of the Rules, and the
       Commission's Forfeiture Policy Statement. In examining Alleyne's
       response, 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 have
       considered the response to the NAL in light of these statutory factors
       and have found that a reduction in the forfeiture is not warranted.

    8. Section 301 of the Act requires 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. For the purposes of
       section 301 of the Act, 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." As described below, we find that Mr. Alleyne and Ms. White
       are jointly and severally liable for operating the unlicensed radio
       station on 96.5 MHz because the facts, taken together, show that they
       demonstrated management and control over the station as a whole.

    9. On July 23 and 24, 2008, agents determined, and Mr. Alleyne and Ms.
       White concede, that an unlicensed radio station operated on 96.5 MHz
       from their apartment. Mr. Alleyne assisted with the installation and
       removal of the station's antenna on the roof of his building. In
       response to the NAL, Mr. Alleyne specifically states that "we put up
       the antenna" on July 20, 2008. Ms. White demonstrated control over the
       station on the day of the inspection when she turned off the
       transmitter at the agents' request. The fact that someone else also
       may have been involved in the station's operation, as Mr. Alleyne and
       Ms. White claim in their response to the NAL, does not make them any
       less culpable for the station's operations. 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 similar reasons, we decline to
       absolve Ms. White of liability for operation of the unlicensed
       station, as requested by Mr. Alleyne. In light of the control she
       demonstrated over the station during the inspection, we find that Ms.
       White is equally culpable for violating section 301 of the Act.
       Accordingly, we find that the totality of Mr. Alleyne's and Ms.
       White's actions amounted to willful and repeated violations of section
       301 of the Act.

   10. We also decline to cancel or reduce the forfeiture based on Mr.
       Alleyne's and Ms. White's claim that they believed the station
       complied with the Commission's Rules. The Commission has consistently
       stated that ignorance of the law is not a mitigating factor. 
       Similarly, the fact that Mr. Alleyne and Ms. White ceased operating
       the station immediately upon being advised of its illegality does not
       warrant a cancellation or reduction in the forfeiture. As the
       Commission has stated, "corrective action taken to come into
       compliance with Commission rules or policy is expected, and does not
       nullify or mitigate any prior forfeitures or violations."

   11. Mr. Alleyne and Ms. White also ask that we cancel or reduce the
       proposed forfeiture based on their inability to pay. However, neither
       Mr. Alleyne nor Ms. White submitted any supporting documentation. As
       explicitly stated in the NAL, "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." We therefore deny
       Mr. Alleyne's and Ms. White's request to cancel the forfeiture based
       on their inability to pay.

   12. We have examined Mr. Alleyne's and Ms. White's response to the NAL
       pursuant to the statutory factors above and in conjunction with the
       Forfeiture Policy Statement. As a result of our review, we conclude
       that Mr. Alleyne and Ms. White willfully and repeatedly violated
       section 301 of the Act and that the $10,000 forfeiture proposed in the
       NAL is warranted.

   IV. ORDERING CLAUSES

   13. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended ("Act"), and sections 0.111,
       0.311 and 1.80(f)(4) of the Commission's Rules, Andre Alleyne and
       Jessie White ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY
       FORFEITURE in the amount of $10,000 for willfully and repeatedly
       violating section 301 of the Act.

   14. 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 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. Alleyne and Ms. White  shall also send electronic notification on
       the date said payment is made to NER-Response@fcc.gov

   15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Andre
       Alleyne and Jessie White at their addresses of record.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director, Northeast Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Letter from Andre Alleyne to New York Office, Northeast Region,
   Enforcement Bureau (January 2, 2009)("Response"). Although Jessie White
   did not separately submit a response, we treat Alleyne's response as a
   joint response on behalf of himself and Ms. White given that the response
   requests that we absolve Ms. White of all responsibility for the station's
   operation.

   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.

   Andre Alleyne and Jessie White, Notice of Unlicensed Operation (Enf. Bur.,
   New York Office, rel. July 30, 2008).

   Andre Alleyne and Jessie White, Notice of Apparent Liability for
   Forfeiture, NAL/Acct. No. 200932380005 (Enf. Bur., New York Office, rel.
   Dec. 10, 2008).

   See supra note 2.

   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).

   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).

   Response at 1.

   47 U.S.C. S: 301.

   See Joni Craig, Forfeiture Order, 21 FCC Rcd 10793 (2006) at para. 10.

   See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991), citing
   Vernon Broadcasting, Inc., 60 RR 2d 1275, 1277 (1986) and Fay Neel
   Eggleston, 19 FCC 2d 829 (1969).

   See, e.g., AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd
   21866, 21870-71 (2002) (finding that remedial action to correct the
   violation at issue was not a mitigating factor and noting that all
   licensees and Commission regulates are expected to promptly take
   corrective action when violations are brought to their attention). See
   also, Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994)(corrective action taken
   to comply with the Rules is expected, and does not mitigate any prior
   forfeitures or violations).

   See NAL at para. 17.

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a),
   73.1560(a), 73.1745(a), 73.3526(e)(12).

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 11-1233

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   Federal Communications Commission DA 11-1233