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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


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     In the Matter of           File Number: EB-09-MA-0176  
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     Nounoune Lubin             NAL/Acct. No: 201032600004  
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     North Miami, Florida       FRN: 0020172136             
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                                FORFEITURE ORDER

   Adopted: May 31, 2011 Released: May 31, 2011

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of twenty thousand dollars ($20,000) to Nounoune Lubin
       ("Ms. Lubin") for willful and repeated violation of section 301 of the
       Communications Act of 1934, as amended ("Act"). The noted violations
       involve Ms. Lubin's operation of an unlicensed radio transmitter on
       the frequency 90.1 MHz in North Miami, Florida.

   II. BACKGROUND

    2. On September 2, 2010, the Enforcement Bureau's Miami Office ("Miami
       Office") issued a Notice of Apparent Liability for Forfeiture ("NAL")
       to Ms. Lubin for operation of an unlicensed radio station on 90.1 MHz.
       As discussed in detail in the NAL, agents from the Miami Office
       determined that Ms. Lubin, despite acknowledging receipt of two
       Notices of Unlicensed Operation ("NOUOs"), apparently continued to
       operate an unlicensed radio station on 90.1 MHz from her residence in
       North Miami, Florida. In view of the record evidence, including the
       fact that Ms. Lubin operated an unlicensed station after notice that
       such activity violated the Act and the Commission's rules ("Rules"),
       the NAL proposed a forfeiture of $20,000 against Ms. Lubin for
       violation of section 301 of the Act. Ms. Lubin submitted a response to
       the NAL requesting cancellation of the proposed forfeiture because she
       claims she did not, and has not ever, operated an unlicensed radio
       station.

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with section 503(b) of the Act, section 1.80 of the Rules, and the
       Forfeiture Policy Statement. In examining Ms. Lubin's response,
       section 503(b) of the Act requires that the Commission take into
       account the nature, circumstances, extent, and gravity of the
       violation 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. As discussed below, we have
       considered Ms. Lubin's response in light of these statutory factors
       and impose a $20,000 forfeiture.

    4. 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
       September 9 and October 22, 2009, and on April 22 and May 12, 2010,
       agents from the Miami Office used direction-finding techniques and
       specialized radio equipment to locate the source of radio
       transmissions on 90.1 MHz to Ms. Lubin's residence. In the NAL
       Response, Ms. Lubin states that she "cannot prove a negative" and that
       she "has not, did not, and has never operated a radio station." Ms.
       Lubin provided no other information besides her assertion.

    5. As discussed below, we find Ms. Lubin's assertion that she did not
       operate a radio station unpersuasive and thus affirm our finding in
       the NAL. The evidence before us indicates that an unlicensed radio
       station was operating repeatedly on 90.1 MHz from Ms. Lubin's
       residence. Agents observed a clearly visible coaxial cable coming in
       through a back window of Ms. Lubin's residence that was connected on
       one end to the antenna in the backyard, and on the other end to
       transmitting equipment apparently located in her residence. Moreover,
       Ms. Lubin signed for two written NOUOs notifying her that an
       unlicensed radio station was operating in her residence. Assuming,
       arguendo, that Ms. Lubin did not technically operate the radio station
       equipment in her residence and was originally unaware of the nature of
       the equipment, once she received the notices she had the opportunity
       to evaluate all unknown electronic equipment in her residence and
       ensure that operation did not continue.

    6. Moreover, at a minimum, Ms Lubin allowed the radio station equipment
       to remain in a residential space under her control and could have
       removed or unplugged the equipment at any time. For the purposes of
       section 301, the word "operate" has been interpreted to mean "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." That is, 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 radio stations generally. To
       determine whether an individual is involved in the general conduct or
       management of the station, we look to, among other things, 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." Thus, Ms. Lubin exercised control over the station which
       qualifies as operation under section 301 of the Act. Based on the
       evidence before us, we find that Ms. Lubin willfully and repeatedly
       violated section 301 of the Act by operating an unlicensed radio
       station. Accordingly, pursuant to the statutory factors above, and in
       conjunction with the Forfeiture Policy Statement, we conclude that
       cancellation of the forfeiture is unwarranted and impose a forfeiture
       in the amount of $20,000.

   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(f)(4) of the Commission's rules, Nounoune Lubin
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty thousand
       dollars ($20,000) for violations of section 301 of the Act.

    8. Payment of the forfeiture shall be made in the manner provided for in
       section 1.80 of the Rules within 30 days of the release of this Order.
       If the forfeiture is not paid within the period specified, the case
       may be referred to the Department of Justice for collection pursuant
       to section 504(a) of the Act. Payment of the forfeiture must be made
       by 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 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.
       Ms. Lubin shall also send electronic notification on the date said
       payment is made to SCR-Response@fcc.gov.

    9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Nounoune Lubin at
       her address of record and to her attorney, Ovide Val, at 1031 Ives
       Dairy Rd, Suite 228, Miami, Florida 33179.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
   12654 (Enf. Bur. 2010).

   The NOUOs warned that unlicensed operation of a radio station on 90.1 MHz
   violated the Act and could subject her to further enforcement action,
   including a substantial monetary forfeiture.

   See Letter from Ovide Val, Esq., to Steven DeSena, Resident Agent, Miami
   Office, Enforcement Bureau (October 9, 2010) ("NAL Response").

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

   47 C.F.R. S: 1.80.

   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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 301.

   NAL Response at 1.

   See Campbell v. U.S., 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).

   Revision of Rules and Policies for the Direct Broadcast Satellite Service,
   Report and Order, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV,
   Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).

   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(f)(4).

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 11-971

   2

   Federal Communications Commission DA 11-971