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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