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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-FIELDSCR-12-00000831
Burt Byng ) NAL/Acct. No.: 201232600016
Miami, Florida ) FRN: 0021991153
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 21, 2012 Released: August 22, 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 Burt Byng apparently willfully violated Section 301 of the
Communications Act of 1934, as amended (Act), by operating an
unlicensed radio transmitter on the frequency 107.1 MHz in Miami,
Florida. We conclude that Mr. Byng is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 9, 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 107.1 MHz to an FM
transmitting antenna mounted on the roof of a commercial property in
Miami, Florida. The agents determined that the signals on 107.1 MHz
exceeded the limits for operation under Part 15 of the Commission's
rules (Rules), and therefore required a license. While monitoring the
station, the agents also heard the station identify itself on the air
as "WEROC Radio." Commission records showed that no authorization was
issued to Mr. Byng or to anyone else for operation of an FM broadcast
station at or near this address.
3. On the same date, agents from the Miami Office, accompanied by the
property owner, inspected the unlicensed station's antenna and
transmitter located on the rooftop of the commercial building.
According to the "Move In Sheet" provided by the property owner, a
company called J & B Enterprise US, Inc. was the tenant of the
particular area on the rooftop where the transmitting equipment was
located. The property owner also provided a copy of Mr. Byng's
driver's license and identified Mr. Byng as the individual who rented
the rooftop space. According to Florida records, Mr. Byng is the
President of an inactive business named "J & B Enterprises US, Inc."
The agents also discovered that Mr. Byng registered the domain name,
www.werocradio.com, a webpage for "W-E-R-O-C Radio." The agents also
noticed that the phone number listed in the www.werocradio.com domain
registration was the same phone number listed on the aforementioned
"Move In Sheet" provided by the property owner.
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 Operation
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.
For the purposes of Section 301, the word "operate" has been
interpreted to mean both the technical operation of the station, as
well as "the general conduct or management of a station as a whole, as
distinct from the specific technical work involved in the actual
transmission of signals." In other words, the use of the word
"operate" in Section 301 captures not just the "actual, mechanical
manipulation of radio apparatus," but also operation of a radio
station generally. To determine whether an individual is involved in
the general conduct or management of the station, we can consider
whether such individual exercises control over the station, which the
Commission has defined to include ". . . any means of actual working
control over the operation of the [station] in whatever manner
exercised."
6. We find that the record evidence in this case is sufficient to
establish that Mr. Byng violated Section 301 of the Act. On February
9, 2012, agents from the Miami Office determined that an unlicensed
radio station on the frequency 107.1 MHz operated from the rooftop of
a commercial building in Miami, Florida. On this day, the agents heard
the station engaged in live broadcasts and identify itself as "WEROC
Radio." A review of the Commission's records revealed that no license
or authorization was issued to anyone to operate a radio station on
107.1 MHz at this location. Under Section 301, Mr. Byng can be said to
have "operated" the unlicensed radio station on 107.1 MHz because the
evidence shows that Mr. Byng exercised control over the general
conduct or management of the station. According to the commercial
building owner, Mr. Byng, on behalf of an entity for which he served
as President, leased the space on the rooftop that housed the station,
and the rented space appeared to the agents to be used primarily for
the purpose of operating the unlicensed station. In addition, Mr. Byng
registered the domain name for the www.werocradio.com website. The
foregoing facts indicate that Mr. Byng consciously operated and/or
otherwise was involved in the general conduct or management of the
unauthorized station. We therefore conclude, based on the evidence
before us, that Mr. Byng apparently willfully 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. Byng 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, Burt Byng is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violation 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, Burt Byng
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. Burt Byng 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.
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. Burt Byng
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 Burt Byng 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.
Florida Department of State, Division of Corporations, www.sunbiz.org
(last visited Feb. 22, 2012).
See www.networksolutions.com/whois-search/werocradio.com (last visited
Feb. 28, 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, para. 5 (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, para. 9.
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in Sections 301,
307, and 318 of the Act, and concluding that the word "operate" as used in
Section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id.
Id. See also 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
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).
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Federal Communications Commission DA 12-1371
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Federal Communications Commission DA 12-1371