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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00001027
)
Michael William Downer NAL/Acct. No.: 201232600012
)
Pompano Beach, FL FRN: 0021896352
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 16, 2012 Released: July 16, 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 William Downer 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
101.1 MHz in Pompano Beach, Florida. We conclude that Mr. Downer is
apparently liable for a forfeiture in the amount of twenty thousand
dollars ($20,000).
II. BACKGROUND
2. On October 20, 2011 and February 27, 2012, 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
101.1 MHz to an FM transmitting antenna mounted on an antenna
structure at a commercial property in Pompano Beach, Florida. On both
dates, the agents heard the station identify itself on the air as
"N-R-G." On October 20, 2011, the agents heard a live disc jockey
(DJ), self-identified as DJ "Mikey Mike," mention "Mikey Mike Birthday
Splash [Month Date]." The agents determined that the signals on 101.1
MHz exceeded the limits for operation under Part 15 of the
Commission's rules (Rules), and therefore required a license.
Commission records showed no authorization was issued to Mr. Downer or
to anyone else for operation of an FM broadcast station at or near
this address.
3. On February 27, 2012, agents from the Miami Office, accompanied by the
commercial property owner, observed radio transmitting equipment,
including a power amplifier connected via coaxial cable to an FM
transmitting antenna that was installed in a storage room. The
property owner told the agents that he rented the storage space to two
men, one of whom was named "Mike" and the other "Damian." The property
owner had the renters' contact phone number, which he dialed, and then
handed the phone to one of the agents. The agent spoke to an
individual, whom the property owner identified as "Mike." During the
phone conversation, Mike asked the agent what would happen to his
radio equipment. Shortly after the telephone conversation ended, the
other renter, Damian Anthony Ojouku Allen, came to the station and
removed the equipment from the location.
4. Agents from the Miami Office thereafter found additional information
connecting Mr. Downer to the unlicensed station on the Internet. Three
associated Facebook pages, "Michael Djmikeymike Downer," "Mikey Mike
Bday Splash," and "Nrg Wenzdaze," each displayed an advertisement with
Mr. Downer's picture for an event called the "Mikey Mike Bday Splash,"
which was being held on Mr. Downer's date of birth. The "Mikey Mike
Bday Splash" and "Nrg Wenzdaze" webpages also referred to
"nrgonlineradio.com" and "NRGONLINERADIO.COM 101.1 FM," respectively.
The contact phone number listed on the "Mikey Mike Bday Splash" and
"Nrg Wenzdaze" webpages matched a contact phone number provided by Mr.
Downer and Mr. Allen on a lease agreement for a commercial suite in
Lauderhill, Florida, which housed an unlicensed radio station
operating on the frequency 102.1 MHz; the agents obtained a copy of
the agreement during a 2010 investigation.
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. Downer
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 shows, on October 20,
2011 and February 27, 2012, agents from the Miami Office determined
that an unlicensed radio station was operating on the frequency 101.1
MHz from a commercial building in Pompano Beach, Florida. A review of
the Commission's records revealed that no license or authorization was
issued to anyone to operate a radio station on 101.1 MHz at this
location. The owner of the commercial building stated that "Mike"
(i.e., Michael William Downer) and another individual (i.e., Damian
Anthony Ojouku Allen) rented the space housing the unlicensed radio
station. During a phone conversation, "Mike" asked the agent what
would happen to his radio transmitting equipment as a result of the
investigation, and then apparently made arrangements with the other
renter, Mr. Allen, to remove the equipment from the location.
7. In addition, the record shows that Mr. Downer was broadcasting over
the unlicensed station. On October 20, 2011, agents from the Miami
Office heard a live DJ identify himself on the air as DJ "Mikey Mike"
and the station as "N-R-G." An advertisement containing Mr. Downer's
picture for an event called the "Mikey Mike Bday Splash," which was
being held on Mr. Downer's date of birth, was listed on three social
networking websites associated with "NRGOnlineRadio." Further, the
contact telephone number listed on two of the social networking
websites matched a contact number for Mr. Downer that the Miami Office
obtained during a previous investigation of Mr. Downer's unlicensed
operations in 2010. The totality of the evidence convinces us that Mr.
Downer was DJ "Mikey Mike," and that he operated the unlicensed
station. Because Mr. Downer consciously operated the station and did
so on more than one day, the apparent violation of the Act was both
willful and repeated. We therefore conclude, based on the evidence
before us, that Mr. Downer apparently willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
B. Proposed Forfeiture Amount
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. In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. Commission records show
that the Miami Office previously issued several Notices of Unlicensed
Operation to Mr. Downer for operation of unlicensed stations on 102.1
MHz at other locations in Florida. The fact that Mr. Downer continued
to operate an unlicensed station after being put on notice several
times that his unlicensed operation or a radio station contravened the
Act, the Commission's rules, and related Commission orders demonstrate
a deliberate disregard for the Commission's requirements. Thus, we
find that an additional upward adjustment of $10,000 in the forfeiture
amount 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. Downer is apparently liable for a
forfeiture in the amount of $20,000. We further caution Mr. Downer
that future violations may subject him to more severe enforcement
action, including but not limited to larger monetary forfeitures,
criminal prosecution, and the in rem seizure of his equipment.
IV. ORDERING CLAUSES
9. 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 William
Downer is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twenty thousand dollars ($20,000) for violations of
Section 301 of the Act.
10. 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
William Downer 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 check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Michael William Downer shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. 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.
12. 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.
13. 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
William Downer also shall e-mail the written response to
SCR-Response@fcc.gov.
14. 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.
15. 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 William Downer 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.
Month and date redacted.
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.
The Enforcement Bureau has taken separate action against Damian Anthony
Ojouku Allen. See Damian Anthony Ojouku Allen, File No.
EB-FIELDSCR-12-00001027, Notice of Apparent Liability for Forfeiture, DA
12-1093 (Enf. Bur. July 16, 2012).
See Facebook page,
http://www.facebook.com/people/Michael-Djmikeymike-Downer/100000739519126
(last visited June 12, 2012).
See Facebook page, http://www.facebook.com/events/297829443562732/ (last
visited Feb. 29, 2012).
See Facebook page, http://www.facebook.com/nrg.wenzdaze (last visited Feb.
29, 2012).
Agents from the Miami Office obtained a picture of Mr. Downer from the
Florida Department of Highway Safety and Motor Vehicles.
LexisNexis Investigative Portal Homepage,
http://www.lexisnexis.com/government/solutions/investigative/ (last
visited Feb. 29, 2012).
See supra notes 6 and 7.
See Damien Allen and Michael Downer, Hand-delivered Notice of Unlicensed
Operation (Enf. Bur. July 1, 2010) (on file in EB-10-MA-0123).
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.
See supra notes 5-7.
See supra note 11.
The fact that someone else in addition to Mr. Downer may have been
involved in the station's operations does not make Mr. Downer any less of
a participant in the station's unlicensed operations. We have previously
held that, because Section 301 of the Act provides that "no person shall
use or operate" radio transmission equipment, the 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. 47 U.S.C. S: 301 (emphasis added); see, e.g., Jean L.
Senatus, Forfeiture Order, 20 FCC Rcd 14418, at para. 11 (Enf. Bur. 2005);
Robert Brown, EB-10-BS-0050, Memorandum Opinion and Order, DA 12-929, 2012
WL 2391969 (Enf. Bur. June 22, 2012), aff'g, Forfeiture Order, 26 FCC Rcd
6854 (Enf. Bur. 2011), aff'g, Notice of Apparent Liability for Forfeiture,
25 FCC Rcd 13740 (Enf. Bur. 2010); Lloyd Morris, EB-09-BS-0046, Memorandum
Opinion and Order, DA 12-930, 2012 WL 2391973 (Enf. Bur. June 22, 2012),
aff'g, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff'g, 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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Michael Downer, Notice of Unlicensed Operation (Enf. Bur., Dec. 3,
2009) (on file in EB 09-MA-0174); Michael Downer, Hand-delivered Notice of
Unlicensed Operation (Enf. Bur. Mar. 26, 2010) (on file in EB-09-MA-0174);
Damian Anthony Ojouku Allen and Michael Downer, Hand-delivered Notice of
Unlicensed Operation (Enf. Bur. May 21, 2010) (on file in EB-10-MA-0088);
Damian Allen and Michael Downer, Hand-delivered Notice of Unlicensed
Operation (Enf. Bur. July 1, 2010) (on file in EB-10-MA-0123).
See, e.g., Whisler Fleurinor, Notice of Apparent Liability for Forfeiture,
26 FCC Rcd 2478 (Enf. Bur. 2011) (imposing a $20,000 forfeiture for
violations of Section 301); Nounone Lubin, Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 12654 (Enf. Bur. 2010) (imposing a $20,000
forfeiture for violations of Section 301).
See 47 U.S.C. S:S: 401, 501, 503, 510.
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).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1094
Federal Communications Commission DA 12-1094