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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                           )                                
                                                            
                           )                                
                                                            
     In the Matter of      )   File No.: EB-10-MA-0145      
                                                            
     Willis Cernogg, Jr.   )   NAL/Acct. No.: 201232600003  
                                                            
     Miami, Florida        )   FRN: 0021241344              
                                                            
                           )                                
                                                            
                           )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: October 25, 2011 Released: October 25, 2011

   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 Willis Cernogg, Jr. ("Mr. Cernogg") 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 90.7 MHz in Miami, Florida. We conclude that Mr. Cernogg is
       apparently liable for a forfeiture in the amount of ten thousand
       dollars ($10,000).

   II. BACKGROUND

    2. On January 21, March 24, and April 14, 2011, in response to a
       complaint, agents from the Enforcement Bureau's Miami Office ("Miami
       Office") used direction-finding techniques to locate the source of
       radio frequency transmissions on the frequency 90.7 MHz to a residence
       in Miami, Florida, shared by Mr. Cernogg and others. On January 21 and
       March 24, 2011, the agents 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 no license or authorization was
       issued to Mr. Cernogg or anyone else to operate a radio station on
       90.7 MHz at this location.

    3. On April 14, 2011, agents from the Miami Office inspected the radio
       station after the Miami Police Department ("MPD") executed a search
       warrant and secured the residence. The agents observed that the
       station's transmitter display read 90.7 MHz. A person who rented a
       room at the residence stated that Mr. Cernogg put the radio equipment
       in the locked area where MPD found it, and also provided Mr. Cernogg's
       phone number. Subsequently, an agent from the Miami Office conducted
       an Internet search and found profile information for user
       "LadyLuckRadio907FMMiami" discussing an underground radio station on
       90.7 FM in Miami; and also found a Twitter user called "LADYLUCKRADIO"
       listing "ladyluckradio.net" and "club ladyluck 1610 NW 119TH." The
       domain name, ladyluckradio.net, was registered to Mr. Cernogg. The
       Florida Department of State's Division of Corporations ("Division of
       Corporations") lists Mr. Cernogg as the registered agent of a business
       called "Lady Luck Social Club, Inc.," with principal and mailing
       addresses at 1610 NW 119th Street, Miami, Florida 33167, the same
       address partially listed on the Twitter account for "LADYLUCKRADIO."
       The phone number for Mr. Cernogg listed on one of the documents for
       Lady Luck Social Club, Inc. filed with the Division of Corporations
       matches the contact phone number for Mr. Cernogg that Mr. Cernogg's
       housemate gave the agents on April 14, 2011. The address for Mr.
       Cernogg listed in a document for Lady Luck Social Club, Inc. filed
       with the Division of Corporations also matches the address for Mr.
       Cernogg listed in the ladyluckradio.net domain name registration.

   III. DISCUSSION

    4. 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.  Section 312(f)(1) of the Act defines "willful" as the
       "conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both sections 312 and 503(b) of the Act, and the
       Commission has so  interpreted the term in the section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful. The term "repeated" means the
       commission or omission of such act more than once or for more than one
       day.

    5. 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 both the technical operation of the station, as
       well as "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."

    6. The facts of this case demonstrate that Mr. Cernogg exercised
       sufficient control over the general conduct and management of the
       station, tantamount to operating the station, for purposes of section
       301 of the Act. On January 21, March 24, and April 14, 2011, agents
       from the Miami Office determined that an unlicensed radio station on
       the frequency 90.7 MHz operated from Mr. Cernogg's residence in Miami,
       Florida. A review of the Commission's records revealed that Mr.
       Cernogg did not have a license to operate a radio station on this
       frequency at this location. The agents also did not find any evidence
       to suggest that anyone else living in the residence was involved in
       the operation or management of the station. There is publicly
       available information showing that Mr. Cernogg actively marketed the
       unlicensed station, and used the unlicensed station to cross-promote
       his other businesses (e.g., a club called the "Lady Luck Social Club")
       and provide commercial advertisements under the guise of a legitimate
       commercial radio station. Specifically, the unlicensed station in
       Miami operating on the frequency 90.7 MHz was advertised on the
       Internet with variations of the phrase "Lady Luck Radio." Mr. Cernogg
       registered the domain name for the ladyluckradio.net webpage and,
       according to the Division of Corporations's records, is the registered
       agent for "Lady Luck Social Club, Inc." An address associated with Mr.
       Cernogg is listed on the Twitter account for "LADYLUCKRADIO." Mr.
       Cernogg paid utilities for the residence for a period of time and,
       according to another resident living in the same house, placed the
       radio equipment in a locked area to ensure its safekeeping.

    7. Mr. Cernogg's apparent violations of section 301 of the Act were
       "willful" because he operated the station consciously and
       deliberately. Moreover, because Mr. Cernogg operated the station on
       more than one day, we find the apparent violation was also repeated.
       Therefore, based on the evidence before us, we find that Mr. Cernogg
       apparently willfully and repeatedly violated section 301 of the Act by
       operating radio transmission equipment without the required Commission
       authorization.

    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. Applying the Forfeiture Policy Statement, section 1.80 of
       the Rules, and the statutory factors to the instant case, we conclude
       that Mr. Cernogg is apparently liable for a forfeiture 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, 0.204(b),
       0.311, 0.314, and 1.80 of the Commission's rules, Willis Cernogg, Jr.
       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
       Commission's rules, within thirty (30) days of the release date of
       this Notice of Apparent Liability for Forfeiture, Willis Cernogg, Jr.
       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 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 regarding payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
       Willis Cernogg, Jr. shall send electronic notification on the date
       said payment is made to SCR-Response@fcc.gov.

   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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, South
       Central Region, Miami Office, P.O. Box 520617, Miami, Florida 33152
       and include the NAL/Account number referenced in the caption. In
       addition, Willis Cernogg, Jr. shall email the written response 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 both Certified Mail, Return Receipt
       Requested, and regular mail, to Willis Cernogg, Jr. at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Stephanie Dabkowski

   Resident Agent

   Miami Office

   South Central Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Part 15 of the Rules sets out the conditions and technical requirements
   under which certain radio transmission devices may be used without a
   license. In relevant part, 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.

   On April 14, 2011, an agent from the Miami Office found profile
   information for user "LadyLuckRadio907FMMiami" promoting "WE ARE THE SOUND
   TRACK TO THE REAL MIAMI...KEEP IT LOCKED IN UR RIDE 90.7 FM THE HOTTES
   [sic] STATION IN THE WORLD." 90.7 FM Ladyluckradio.com website, available
   at http://ladyluckradio.ning.com/profile/LadyLuckRadio907FMMiami (last
   visited April 14, 2011).

   See twitter.com/ladyluckradio (last visited April 15, 2011).

   See www.networksolutions.com/whois-search/ladyluckradio.net (last visited
   April 15, 2011).

   See id. See also Articles of Amendment to Articles of Incorporation for
   Lady Luck Social Club, Inc. filed with the Florida Department of State's
   Division of Corporations, Sept. 21, 2011.

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

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., section 503) . . . . As defined[,] . . . `willful' means that the
   licensee knew that he was doing the act in question, regardless of whether
   there was an intent to violate the law. `Repeated' means more than once,
   or where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms . . . .").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
   California Broadcasting Co.").

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) ("Callais
   Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, para. 9.

   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 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).

   The address of the shared residence is listed as a former address where
   Mr. Cernogg paid utilities,
   http://www.lexisnexis.com/government/solutions/investigative/, Utility
   Locator database (last visited Sept. 13, 2011).

   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: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314,
   1.80.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.16, 1.80(f)(3).

   Federal Communications Commission DA 11-1775

                                       2

   Federal Communications Commission DA 11-1775