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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-FIELDSCR-12-00000830
McArthur Bussey ) NAL/Acct. No.: 201232600015
Fort Lauderdale, Florida ) FRN: 0021910245
)
)
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 McArthur Bussey 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 89.1 MHz in
Fort Lauderdale, Florida. We conclude that Mr. Bussey is apparently
liable for a forfeiture in the amount of fifteen thousand dollars
($15,000).
II. BACKGROUND
2. On November 3, 2011, and February 15, 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 89.1 MHz to a residence in Fort
Lauderdale, Florida leased by Mr. Bussey. While monitoring the station
on November 3, 2011, agents from the Miami Office heard a disc jockey
(DJ) identify himself as "Real Deal." On February 15, 2012, 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. Commission records showed that no
authorization was issued to Mr. Bussey or to anyone else for operation
of an FM broadcast station at or near this address.
3. An agent from the Miami Office also found information on the Internet
connecting Mr. Bussey to the unlicensed station. The "Real Deal"
Facebook page contained an advertisement for an after party, which
stated "Come Celebrate with DJ Real Deal" over a photograph of "Real
Deal" that matched Mr. Bussey's Florida driver's license photograph.
The advertisement also stated to call Mr. Bussey's phone number "FOR
INFO." The Facebook page for "Real Deal" also listed the webpage for
the unlicensed station, 891radio.net, as the contact information
website. The domain name, 891radio.net, was registered to Mr. Bussey's
leased residence, the location of the unlicensed station. The
unlicensed station's webpage also contained the same photograph of Mr.
Bussey as the Facebook page advertisement and stated "Call or Text"
Mr. Bussey's phone number.
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.
A. Unlicensed Broadcast Operations
5. The evidence in this case is sufficient to establish that Mr. Bussey
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 November
3, 2011, and February 15, 2012, agents from the Miami Office
determined that an unlicensed radio station on the frequency 89.1 MHz
operated from Mr. Bussey's leased residence in Fort Lauderdale,
Florida. A review of the Commission's records revealed that no license
or authorization was issued to anyone to operate a radio station on
89.1 MHz at or near this location. On November 3, 2011, agents from
the Miami Office heard a DJ identify himself as "Real Deal" on 89.1
MHz. The Facebook page for "Real Deal" and the unlicensed station's
webpage, 891radio.net, contain a photograph of Mr. Bussey and his
phone number. In addition, the webpage, 891radio.net, is also
registered to Mr. Bussey's leased residence. The totality of the
evidence convinces us that Mr. Bussey is DJ "Real Deal" and that he
operated the unlicensed station. Because Mr. Bussey 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. Bussey apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment without the required Commission
authorization.
B. Proposed Forfeiture Amount
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. We find that the violations here warrant a proposed
forfeiture above the base amount. Commission records show that the
Miami Office previously issued a Notice of Unlicensed Operation to Mr.
Bussey for operation of an unlicensed station on the same frequency
(i.e., 89.1 MHz) at a different leased residence in Fort Lauderdale,
Florida. The fact that Mr. Bussey continued to operate an unlicensed
station after being put on notice that his actions contravened the
Act, the Commission's rules, and related Commission orders
demonstrates a deliberate disregard for the Commission's requirements.
Thus, we find that an upward adjustment in the forfeiture amount of
$5,000 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. Bussey is apparently liable for a
forfeiture in the amount of $15,000.
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, McArthur Bussey is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of
Section 301 of the Rules.
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, McArthur
Bussey 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 check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. McArthur Bussey will 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.
10. 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.
11. 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. McArthur
Bussey also shall e-mail the written response to SCR-Response@fcc.gov.
12. 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.
13. 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 McArthur Bussey 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.
See Facebook, http://www.facebook.com/891FM (last visited Feb. 22, 2012).
Id. See also Lexis Nexis Investigative Portal Homepage,
http://www.lexisnexis.com/government/solutions/investigative/ (last
visited (Feb. 22, 2012).
See Facebook, http://www.facebook.com/891FM (last visited Feb. 22, 2012).
See www.networksolutions.com/whois-search/891radio.net (last visited Feb.
22, 2012).
See http://www.891radio.net (last visited June 18, 2012).
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).
See Mcarthur Bussey, Notice of Unlicensed Operation (Enf. Bur. rel. Oct.
17, 2008) (on file in EB-08-MA-0146).
See Robert Brown, File No. EB-10-BS-0050, Memorandum Opinion and Order, DA
12-929 (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); Loyd Morris, File No. EB-09-BS-0046,
Memorandum Opinion and Order, DA 12-930 (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).
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 12-1133
Federal Communications Commission DA 12-1133