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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


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     In the Matter of               File No: EB-10-MA-0048      
                                )                               
     Whisler Fleurinor              NAL/Acct. No: 201132600002  
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     Fort Lauderdale, Florida       FRN: 0020655106             
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                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: March 4, 2011 Released: March 4, 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 Whisler Fleurinor ("Mr. Fleurinor"), apparently willfully and
       repeatedly violated section 301 of the Communications Act of 1934, as
       amended ("Act"), by operating an unlicensed radio transmitter at his
       commercial property in Fort Lauderdale, Florida. We conclude that Mr.
       Fleurinor is apparently liable for a forfeiture in the amount of
       twenty  thousand dollars ($20,000).

   II. BACKGROUND

    2. On March 16 and August 24, 2010, in response to complaints about an
       unlicensed station on 99.5 MHz, 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
       99.5 MHz to a commercial property in Fort Lauderdale, Florida, which
       according to Florida property records is owned by Mr. Fleurinor. On
       March 16, 2010, the agents determined that the signals from Mr.
       Fleurinor's building exceeded the limits for operation under Part 15
       of the Commission's rules ("Rules") and therefore required a license.
       A review of Commission records showed that no authorization was issued
       to Mr. Fleurinor, or to anyone for any operation of an FM broadcast
       station on this frequency, at or near this address.

    3. On August 24, 2010, the agents inspected the unlicensed station. Mr.
       Fleurinor showed the agents his antenna and transmitter, admitted that
       the equipment was his, and then turned off the transmitter. Prior to
       leaving the property, the agents issued an on-scene Notice of
       Unlicensed Operation ("NOUO") to Mr. Fleurinor, which he signed
       acknowledging that he was in receipt of the NOUO. The NOUO warned that
       operation of an unlicensed station violated the Act and the Rules and
       could result in further enforcement action.

    4. Finally, on August 31, 2010, agents from the Miami Office again used
       direction-finding techniques to locate the source of radio frequency
       transmissions on the frequency 99.5 MHz to Mr. Fleurinor's commercial
       property in Fort Lauderdale, Florida. Once again, the agents
       determined that these signals exceeded the limits for operation under
       Part 15 of the Rules and therefore required a license. A review of
       Commission records showed that no authorization was issued to Mr.
       Fleurinor, or to anyone for any operation of an FM broadcast station
       on this frequency, at or near this address.

   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. On
       March 16, August 24, and August 31, 2010, the agents determined that
       Mr. Fleurinor operated an unlicensed radio station on 99.5 MHz from
       his commercial property in Fort Lauderdale, Florida. A review of the
       Commission's records revealed that Mr. Fleurinor did not have a
       license to operate a radio station on 99.5 MHz in Fort Lauderdale,
       Florida. Because Mr. Fleurinor consciously operated the station, we
       find that the apparent violation was willful. In addition, because Mr.
       Fleurinor's unlicensed operation occurred on more than one day, we
       find that the apparent violation was repeated. Based on the evidence
       before us, we find that on March 16, August 24 and August 31, 2010,
       Mr. Fleurinor apparently willfully and repeatedly violated section 301
       of the Act by operating radio transmission equipment without the
       required Commission authorization.

    7. 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. Consequently, the $10,000 base forfeiture amount is
       subject to adjustment. On two separate occasions - January 14, 2008
       and August 24, 2010 - Mr. Fleurinor was issued a NOUO explaining that
       unlicensed operation of a radio station violated the Act and could
       subject him to further enforcement action, including a substantial
       monetary forfeiture. Despite having acknowledged receipt of both
       NOUOs, Mr. Fleurinor continued to operate an unlicensed radio station
       on 99.5 MHz from his commercial property in Fort Lauderdale, Florida.
       The fact that Mr. Fleurinor continued to operate with full knowledge
       that such activity violated the Act and the Rules demonstrates a
       deliberate disregard for the Commission's requirements. Thus, we find
       that an upward adjustment in the forfeiture amount is warranted.
       Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that Mr.
       Fleurinor is apparently liable for a forfeiture in the amount of
       $20,000.

   IV. ORDERING CLAUSES

    8. 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 Commission's Rules, Whisler Fleurinor is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty thousand dollars ($20,000) for violation of section 301 of the
       Act.

    9. 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, Whisler Fleurinor SHALL
       PAY the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   10. 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
       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.   For questions about payment, contact the
       Financial Operations Group Help Desk at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov. Whisler Fleurinor shall also send an email
       notification to  SCR-Response@fcc.gov  on the date said payment is
       made.

   11. 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, if
       any, must be mailed to Federal Communications Commission, Enforcement
       Bureau, South Central Region, Miami Office, PO Box 520617, Miami, FL
       33152, and must include the NAL/Acct. No. referenced in the caption.
       The written shall also be emailed to SCR-Response@fcc.gov.

   12. 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.

   13. 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 Whisler Fleurinor at his address of
       record and to his counsel, Rocco G. Marucci, 633 Southeast 3rd Avenue,
       Suite 302, Fort Lauderdale, 33301.

   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.

   We note that this is the second NOUO issued by the Miami Office to Mr.
   Fleurinor for operation of an unlicensed FM broadcast station. The First
   NOUO, issued on January 14, 2008, involved Mr. Fleurinor's unlicensed
   operation of a radio station on the frequency 97.7 MHz from the same
   commercial property in Fort Lauderdale, Florida. See Whisler Fleurinor,
   Notice of Unlicensed Operation (Enf. Bur., Miami Office, rel. Jan. 14,
   2008) ("First NOUO"). The Miami Office received a return receipt for the
   First NOUO signed by Mr. Fleurinor and a response to the First NOUO signed
   by Mr. Fleurinor's attorney. See Letter from Rocco G. Marucci, P.A. to
   Stephanie Dabkowski, Resident Agent, Miami Office dated January 22, 2008.
   In the response, Mr. Fleurinor's attorney stated that "Mr. Fleurinor had
   no intention of violating any federal or state laws with respect to any
   radio transmissions from his business. He has advised that he will have
   the equipment checked to insure that it complies with the FCC levels and
   does not violate any laws or regulations."

   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.

   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).

   See 47 C.F.R. S: 1.80(b)(4). See also Nounoune Lubin, 25 FCC Rcd 12654
   (Enf. Bur. 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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-431

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   Federal Communications Commission DA 11-431