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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                               
                                                        
                        )                               
                                                        
     In the Matter of   )   File No: EB-10-MA-0198      
                                                        
     Durrant Clarke     )   NAL/Acct. No: 201132600007  
                                                        
     Miami, Florida     )   FRN: 0020872792             
                                                        
                        )                               
                                                        
                        )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 19, 2011 Released: May 19, 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 Durrant Clarke ("Mr. Clarke"), 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 95.9 MHz from his business in Miami, Florida. We conclude
       that Mr. Clarke is apparently liable for a forfeiture in the amount of
       ten  thousand dollars ($10,000).

   II. BACKGROUND

    2. On November 6, 2010, and again on November 20, 2010, 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 95.9 MHz to a business in Miami,
       Florida. According to property records, Mr. Clarke is the owner of the
       property at this address. According to Florida corporation records,
       Mr. Clarke is the owner and director of the business at this location.
       The agents determined on November 6, 2010 that the signals exceeded
       the limits for operation under Part 15 of the Commission's rules
       ("Rules), and therefore required a license. Commission records showed
       no authorization issued to Mr. Clarke or to anyone for operation of an
       FM broadcast station at or near this address on this frequency.

    3. During the November 20, 2010 inspection of the unlicensed radio
       station at Mr. Clarke's business, Mr. Clarke stated that he was the
       owner of the property and the business and, in response to a request
       to inspect the transmitting equipment, he showed the agents an
       unlocked room adjoining his office, which contained an operational FM
       broadcast transmitter. Mr. Clarke stated that: (1) he allowed an
       acquaintance to place the transmitting equipment there about four
       weeks earlier; (2) he was aware of the equipment when it was installed
       and was aware it was a radio transmitter of some kind; (3) the
       equipment used his electrical power and used his router to connect to
       the internet; and (4) he turned the transmitter on and off at
       different times in the past per instructions from his acquaintance.
       During the inspection, Mr. Clarke turned the transmitter off and the
       agents confirmed that the station they had monitored on 95.9 MHz
       simultaneously ceased operation.

   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 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.

    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. On November 6 and again on November 20, 2010, agents from the Miami
       Office determined that an unlicensed radio station on the frequency
       95.9 MHz was operating from Mr. Clarke's business address in Miami,
       Florida. A review of the Commission's records revealed that Mr. Clarke
       did not have a license to operate a radio station at this location. As
       discussed more fully below, we find that Mr. Clarke is apparently
       liable for operating the unlicensed radio station on 95.9 MHz because
       he demonstrated control over the management of the station as a whole.

    7. Together, the facts show Mr. Clarke had control of the station and
       thus was involved in the general conduct or management of the station.
       During the inspection, and by his own admission, Mr. Clarke had
       control over the physical space in which the transmitter was located,
       provided the station's electricity and internet access, was aware that
       the transmitter was there, and turned the transmitter on and off
       several times. Mr. Clarke also demonstrated control over the station
       by turning the transmitter off during the inspection. The fact that
       someone else also may have been involved in the station's operation
       does not make Mr. Clarke any less of a participant in the station's
       operation. 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. Because
       Mr. Clarke consciously operated the station on more than one day, the
       apparent violation was willful and repeated. Based on the evidence
       before us, we find that Mr. Clarke 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. Clarke is apparently liable for a forfeiture in the amount of
       $10,000.

   IV. ORDERING CLAUSES

    9. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act
       and sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
       Durrant Clarke is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of ten thousand dollars ($10,000) for
       violation of section 301 of the Act.

   10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Durrant Clarke 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 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 procedures,
       contact the Financial Operations Group Help Desk at 1-877-480-3201 or
       Email: ARINQUIRIES@fcc.gov. Durrant Clarke 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 1.80(f)(3) and 1.16 of the Rules. The written statement must
       be mailed to Federal Communications Commission, Enforcement Bureau,
       South Central Region, Miami Office, P.O. Box 520617, Miami, FL
       33152-0617, and must include the NAL/Acct. No. referenced in the
       caption. The written statement shall also be emailed 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 Durrant Clarke at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Steven DeSena

   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.

   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), recon. denied,
   7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").

   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.

   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. 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).

   See, e.g., Vicot Chery, Notice of Apparent Liability for Forfeiture, 25
   FCC Rcd 14596 (Enf. Bur. 2010).

   47 U.S.C. S: 301.

   See, e.g., Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11
   (Enf. Bur. 2005); 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).

   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: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 11-926

                                       5

   Federal Communications Commission DA 11 -926