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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00001175
)
Michael Gregory NAL/Acct. No.: 201232600014
)
Miami, Florida FRN: 0021896253
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 11, 2012 Released: July 11, 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 Michael Gregory 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
Miami, Florida. We conclude that Mr. Gregory is apparently liable for
a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On March 1, 2012, in response to complaints, agents from the
Enforcement Bureau's Miami Office (Miami Office) monitored a station
broadcasting on 92.7 MHz in Miami, Florida, and heard a person
identify himself as "DJ Miami of 92.7 Heavy FM" and advertise the name
of the website, www.whvy927.com. An agent determined that Mr. Gregory
registered the domain name, "whvy927.com." An agent also found a
webpage called "DJ Miami Bio," which contained a photograph of "DJ
Miami" and referenced a Facebook page for "Michael Djmiami Gregory."
The e-mail address listed for the "whyvy927.com" domain name
registration was listed as "DJ Miami's" e-mail address.
3. On March 7 and April 27, 2012, agents from the Miami Office used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 92.7 MHz to an FM transmitting antenna
mounted on the roof of a commercial building in Miami, Florida. On
both days, the agents determined that the signals on 92.7 MHz exceeded
the limits for operation under Part 15 of the Commission's rules
(Rules), and therefore required a license. Commission records showed
that no authorization was issued to Mr. Gregory or to anyone else for
operation of an FM broadcast station at or near this address.
4. On April 27, 2012, agents from the Miami Office-while waiting in the
lobby for the commercial building's representative-met, by chance, a
man who stated he was "DJ Miami." DJ Miami, who later confirmed that
he was Michael Gregory, led the agents to his leased suite that
contained an operational FM broadcast transmitter. Mr. Gregory also
admitted that he purchased the transmitting equipment. During the
inspection, Mr. Gregory turned the transmitter off, and the agents
confirmed that the station they had monitored on 92.7 MHz
simultaneously ceased operation.
III. DISCUSSION
5. 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.
A. Unlicensed Broadcast Operations
6. The evidence in this case is sufficient to establish that Mr. Gregory
violated Section 301 of the Act. 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. As the record reflects, on March 1,
2012, agents from the Miami Office heard a DJ identify himself as "DJ
Miami" on 92.7 MHz. On March 7 and April 27, 2012, the agents observed
an unlicensed radio station on the frequency 92.7 MHz operating from a
commercial building in Miami, Florida. On April 27, 2012, Mr. Gregory
admitted to the agents that he was "DJ Miami." Mr. Gregory allowed the
agents to inspect his station, which was located in his leased suite,
and acknowledged that it was he who purchased the transmitting
equipment. Mr. Gregory also demonstrated the ability to control the
equipment by turning off the transmitter during the inspection. In
addition, a review of the Commission's records confirms that Mr.
Gregory did not have a license to operate a radio station on this
frequency, at this location. Because Mr. Gregory consciously operated
the station and did so on more than one day, the apparent violations
of the Act were both willful and repeated. We therefore conclude,
based on the evidence before us, that Mr. Gregory apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
B. Proposed Forfeiture Amount
7. 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. Gregory is apparently liable for a forfeiture in the amount
of $10,000.
IV. ORDERING CLAUSES
8. 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, Michael Gregory 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.
9. 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, Michael
Gregory SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Michael Gregory shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@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 1.16 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, FL 33152-0617
and include the NAL/Acct. No. referenced in the caption. Michael
Gregory also shall e-mail the written response 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 First Class Mail to Michael Gregory 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.
See www.networksolutions.com/whois-search/whvy927.com (last visited Jan.
30, 2012).
See http://zmldajoker.com/dj-miami-bio/ (cached on Google on Jan. 24,
2012) (last visited Feb. 9, 2012).
Id. See also supra note 2.
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), recons. denied,
7 FCC Rcd 3454 (1992).
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).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
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.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-1092
5
Federal Communications Commission DA 12-1092