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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No: EB-10-TP-0077
)
Fritzner Lindor NAL/Acct. No.: 201132700007
)
Orange Park, Florida FRN: 0020856266
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 16, 2011 Released: May 16, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Fritzner Lindor ("Mr. Lindor"), 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 94.7 MHz in Orange Park, Florida. We conclude that Mr.
Lindor is apparently liable for a forfeiture in the amount of fifteen
thousand dollars ($15,000).
II. BACKGROUND
2. On June 8 and 9, 2010, agents from the Enforcement Bureau's Tampa
Office ("Tampa Office"), in response to a complaint, used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 94.7 MHz to Mr. Lindor's residence in
Orange Park, Florida. On both days 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 Commission records shows that Mr. Lindor does not
hold any authorization to broadcast on any frequency in Orange Park,
Florida.
3. On June 10, 2010, agents from the Tampa Office inspected the
unauthorized broadcast station in Mr. Lindor's residence while it was
on the air. During the inspection, Mr. Lindor admitted to purchasing
the station's transmitter and operating the station without a license.
Mr. Lindor also stated that he had been involved in broadcasting for
about 19 years and knew that his actions violated the Act.
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. The term "willful" as used in section 503(b) 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.
5. 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. On June 8, 9, and 10,
2010, agents from the Tampa Office determined that an unlicensed radio
station was operating on the frequency 94.7 MHz from Mr. Lindor's
residence in Orange Park, Florida. A review of the Commission's
records revealed that Mr. Lindor did not have a license to operate a
radio station on this frequency at this location. During the
Commission's inspection, Mr. Lindor also admitted to operating an
unlicensed radio station with knowledge that such operation violated
the Act and the Rules. Because Mr. Lindor consciously operated a
station, we find the apparent violation willful. Because the 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 June 8, 9,
and 10, 2010, Mr. Lindor apparently willfully and repeatedly violated
section 301 of the Act by operating radio transmission equipment
without the required Commission authorization.
6. 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. In this regard, we take into account the fact that Mr.
Lindor knew that his actions violated the Act, yet he still engaged in
the conduct, thereby demonstrating a deliberate disregard for the
Commission's requirements. Based of the evidence before us, we find
that an upward adjustment of $5,000 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. Lindor is
apparently liable for a $15,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Fritzner Lindor is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of section
301 of the Act.
8. 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, Fritzner Lindor SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
9. 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. Fritzner Lindor shall also send an email
notification to SCR-Response@fcc.gov on the date said payment is
made.
10. 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, shall be mailed to Federal Communications Commission, Enforcement
Bureau, South Central Region, Tampa Office, 4010 W. Boy Scout Blvd.,
Suite 425, Tampa, Florida 33607, and must include the NAL/Acct. No.
referenced in the caption. The written statement shall also be emailed
to SCR-Response@fcc.gov.
11. 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.
12. 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 Fritzner Lindor at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
Southeast Region
Enforcement Bureau
47 U.S.C. S: 301.
On June 8 and 10, 2010, the agents from the Tampa Office observed an
antenna mounted to a tree in Mr. Lindor's yard and traced a coaxial cable
from the antenna into his residence.
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.
47 U.S.C. S: 503(b).
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 Robert Brown, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
13740 (Enf. Bur. 2010); Loyd Morris, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).
47 U.S.C. S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-861
2
Federal Communications Commission DA 11 -861