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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-11-MA-0046
Mercius Dorvilus ) NAL/Acct. No.: 201232600005
Pompano Beach, Florida ) FRN: 0021453774
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 31, 2012 Released: January 31, 2012
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 Mercius Dorvilus 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 92.7 MHz in
Pompano Beach, Florida. We conclude that Mr. Dorvilus is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On May 12 and June 15, 2011, in response to a complaint, 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 92.7 MHz to a residence in Pompano
Beach, Florida. On May 12, 2011, 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.
3. During the June 15, 2011, investigation, agents from the Miami Office
inspected the radio station, which was located in a locked room in the
Pompano Beach residence. On June 17, 2011, a Detective with the
Broward County Sheriff's Office interviewed Mr. Dorvilus regarding the
unlicensed radio station. During the interview, Mr. Dorvilus stated
that he purchased and installed all of the radio station equipment and
was responsible for operating and transmitting on 92.7 MHz from the
rented room. According to Florida Department of State Division of
Corporations records, Mr. Dorvilus is doing business as "Radio
VisionFM 927, Inc." Mr. Dorvilus also registered the domain name,
www.visionfm.org.
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 Sections 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.
Based on the record evidence in this case, we find that Mr. Dorvilus
apparently willfully and repeatedly violated Section 301 of the Act,
by operating an unlicensed radio transmitter on the frequency 92.7 MHz
in Pompano Beach, Florida. On May 12 and June 15, 2011, agents from
the Miami Office determined that an unlicensed radio station on the
frequency 92.7 MHz operated from a locked room in a residence in
Pompano Beach. A review of the Commission's records revealed that no
license or authorization was issued to anyone to operate a radio
station on 92.7 MHz at this location, and Mr. Dorvilus admitted to a
law enforcement officer that he owned, installed, and operated the
radio station located at the residence in Pompano Beach. Furthermore,
the Miami Office confirmed that Mr. Dorvilus registered the domain
name for www.visionfm.org, and is doing business as "Radio VisionFM
927, Inc." Because Mr. Dorvilus operated this station consciously on
more than one day, we find that the apparent violations were not only
willful, but also repeated.
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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Dorvilus is apparently liable for a forfeiture of $10,000.
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 of the Commission's rules, Mercius Dorvilus is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) 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 (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Mercius
Dorvilus 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Mercius Dorvilus will send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, Florida 33152,
and include the NAL/Acct. number referenced in the caption. In
addition, Mercius Dorvilus, shall email the written response 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 Mercius Dorvilus at his address of
record.
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.
Investigative Action Report, Case PB11-06-02308, Broward County Sheriff's
Office.
Florida Department of State, Division of Corporations webpage,
www.sunbiz.org (last visited June 16, 2011).
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.).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, para. 9.
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), recons. 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.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-107
4
Federal Communications Commission DA 12-107