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 No: EB-10-NY-0486      
                                                        
     Recardo Millwood   )   NAL/Acct. No: 201132380005  
                                                        
     Bronx, New York    )   FRN: 0020635678             
                                                        
                        )                               
                                                        
                        )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 12, 2011 Released: May 12, 2011

   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 Recardo Millwood ("Mr. Millwood"), 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 88.9 MHz in Bronx, New York. We conclude that Mr. Millwood
       is apparently liable for a forfeiture in the amount of twenty thousand
       dollars ($20,000).

   II. BACKGROUND

    2. On October 6, 2010, agents from the Enforcement Bureau's New York
       Office ("New York Office") responded to a complaint regarding an
       apparent unlicensed broadcast station operating on the frequency 88.9
       MHz in Bronx, New York. Using mobile direction-finding techniques,
       agents monitored the frequency 88.9 MHz in Bronx, New York, and
       determined that the source of the transmissions was a radio station
       operating with a transmitter located in the building at 3870 White
       Plains Road and an antenna located on the roof of an adjacent
       building. Commission records showed no authorization issued to Mr.
       Millwood or to anyone for operation of a radio station at or near this
       address on this frequency.

    3. While standing outside the building at 3870 White Plains Road on
       October 6, 2010, agents were approached by a man who identified
       himself as Recardo Millwood. Mr. Millwood stated that he is the owner
       and operator of the radio station that identifies as "Sela Radio" and
       allowed the agents to inspect the transmitter and studio. During the
       inspection, the agents verbally warned Mr. Millwood about the
       penalties for operation of an unlicensed radio station. On October 7,
       2010, the New York Office followed up with a written warning to Mr.
       Millwood reiterating the penalties for operating an unlicensed radio
       station and directing him to cease operations of the unlicensed radio
       station immediately.

    4. On October 14, 2010, agents from the New York Office used mobile
       direction-finding techniques to monitor the frequency 88.9 MHz in
       Bronx, New York, and again determined the source of the transmissions
       to be a radio station identifying as "Sela Radio" and operating from
       3870 White Plains Road. The agents also 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 no Commission authorization for
       operation of a radio station on 88.9 MHz at or near this location in
       Bronx, New York.

    5. On October 15, 2010, an agent from the New York Office returned to the
       building at 3870 White Plains Road to conduct another station
       inspection. The agent was met by the station's operator, who reported
       that the station was operating only via the Internet, which was
       consistent with the agent's findings that the station was off the air
       at the time. The station operator contacted Mr. Millwood by phone and
       the agent spoke to Mr. Millwood, who again identified himself as the
       station owner. The agent again verbally warned Mr. Millwood that a
       license was required for over-the-air operation of the station and
       reminded him of the potential penalties for such a violation.

    6. On October 29, 2010, and November 3, 2010, agents from the New York
       Office again used mobile direction-finding techniques to monitor the
       frequency 88.9 MHz in Bronx, New York, and determined the source of
       the transmissions to be a radio station identifying as "Sela Radio"
       and operating from 3870 White Plains Road. The agents also took field
       strength measurements and determined that the signals being broadcast
       exceeded the limits for operation under Part 15 of the Rules and
       therefore required a license. A review of the Commission's records
       revealed no Commission authorization for operation of a radio station
       on 88.9 MHz at or near this location in Bronx, New York.

   III. DISCUSSION

    7. 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 section 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.

    8. 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.
       Agents determined that an unlicensed radio station operated on 88.9
       MHz from 3870 White Plains Road on October 6, 14, and 29, 2010, and
       November 3, 2010. During an interview with agents on October 6, 2010,
       Mr. Millwood admitted to owning and operating the radio station at
       this location. Because Mr. Millwood operated the station consciously,
       we find that the apparent violation was willful. Because the operation
       occurred on more than one day, we find the apparent violation was
       repeated.  Based on the evidence before us, we find that Mr. Millwood
       apparently willfully and repeatedly violated section 301 of the Act by
       operating radio transmission equipment without the required Commission
       authorization.

    9. 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. We find that Mr. Millwood's continued operation of an
       unlicensed radio station on several different occasions after notice
       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 of $10,000 is
       warranted.  Applying the Forfeiture Policy Statement, section 1.80,
       and the statutory factors to the instant case, we conclude that Mr.
       Millwood is apparently liable for a forfeiture in the amount of
       $20,000.

   IV. ORDERING CLAUSES

   10. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
       Act, and sections 0.111, 0.311, 0.314, and 1.80 of the Rules, Recardo
       Millwood is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of twenty thousand dollars ($20,000) for
       violations of section 301 of the Act.

   11. 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, Recardo Millwood
       SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
       written statement seeking reduction or cancellation of the proposed
       forfeiture.

   12. 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
       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. Recardo Millwood  shall
       also send electronic notification on the date said payment is made to
       NER-Response@fcc.gov.

   13. 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, 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 should also be emailed to
       NER-Response@fcc.gov.

   14. 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.

   15. 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 Recardo Millwood 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.

   See Recardo Millwood, Notice  of Unlicensed Operation (Enf. Bur., New York
   Office, rel. October 7, 2010).

   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.

   Id..

   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."), recon. denied, 7 FCC Rcd 3454 (1992).

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

   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  Marckenson Bazile, Notice of
   Apparent Liability for Forfeiture, 26 FCC Rcd 4928 (Enf. Bur. 2011)
   (upwardly adjusted by $10,000 because violator operated an unlicensed
   radio station on multiple days at two different locations after notice
   that such action violated the rules); Nounoune Lubin, Notice of Apparent
   Liability for Forfeiture, 25 FCC Rcd 12654 (Enf. Bur. 2010) (upwardly
   adjusted by $10,000 because violator operated an unlicensed radio station
   on multiple days after notice that such action violated the rules).

   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)

   Federal Communications Commission DA 11-860

                                       2

   Federal Communications Commission DA 11-860