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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                              )                                
                                                               
                              )                                
     In the Matter of             File No.: EB-08-NY-0291      
                              )                                
     Dexter Blake                 NAL/Acct. No.: 200932380004  
                              )                                
     Mount Vernon, New York       FRN: 0018292433              
                              )                                
                                                               
                              )                                



                          Memorandum opinion and order

   Adopted: December 13, 2012 Released: December 13, 2012

   By the Chief, Enforcement Bureau:

   I. Introduction

    1. In this Memorandum Opinion and Order (MO&O), issued pursuant to
       Section 405 of the Communications Act of 1934, as amended (Act), and
       Section 1.106 of the Commission's rules (Rules), we grant in part and
       deny in part the Petition for Reconsideration (Petition)  filed by
       Dexter Blake. Mr. Blake seeks reconsideration of the Forfeiture Order
       issued by the Enforcement Bureau's Northeast Region in this
       proceeding. The Forfeiture Order imposed a monetary forfeiture in the
       amount of ten thousand dollars ($10,000) against Mr. Blake for
       willfully and repeatedly operating an unlicensed radio broadcast
       station on the frequency 101.5 MHz in Mount Vernon, New York, in
       violation of Section 301 of the Act. For the reasons discussed below,
       we reduce the forfeiture to one thousand seven hundred dollars
       ($1,700).

   II. Background

    2. On March 3, 2009, the Enforcement Bureau's New York Office issued a
       Notice of Apparent Liability for Forfeiture (NAL) in the amount of
       $10,000 to Mr. Blake for operating an unlicensed broadcast station on
       the frequency 101.5 MHz in Mount Vernon, New York. Mr. Blake did not
       file a response to the NAL. On July 22, 2010, the Enforcement Bureau's
       Northeast Region issued a Forfeiture Order affirming the findings in
       the NAL and assessing a $10,000 forfeiture.

    3. In his Petition, Mr. Blake admits to having operated the unlicensed
       station, but claims that cancellation is warranted because the
       individual from whom he received the equipment did not advise him that
       he needed an FCC license. In addition, Mr. Blake requests a reduction
       or cancellation of the forfeiture based on his inability to pay.

   III. Discussion

    4. A petition for reconsideration that relies on facts not previously
       presented to the designated authority will be entertained only if: (1)
       the designated authority (the Enforcement Bureau in this instance)
       determines that consideration of the new facts is required to serve
       the public interest; (2) the petition relies on facts that relate to
       events that occurred or circumstances that have changed since the last
       opportunity to present such matters; or (3) the petition relies on
       facts unknown to the petitioner until after his last opportunity to
       present such matters. In this instance, we find that the public
       interest warrants consideration of Mr. Blake's Petition.

    5. Although Mr. Blake concedes operating an unlicensed radio station, in
       violation of Section of the 301 of the Act, he nonetheless urges the
       Bureau to cancel the forfeiture by arguing that his violation resulted
       from his reliance on erroneous advice. We decline to cancel the
       forfeiture on this basis. It is well established that the Commission
       does not consider ignorance of the law or reliance on erroneous or
       misleading advice from third parties as mitigating circumstances that
       justify cancellation or reduction of a forfeiture, and we see no
       reason to depart from that long-established policy.

    6. Mr. Blake also asserts that the forfeiture, in any event, would pose a
       financial hardship and, therefore, requests reduction or cancellation
       of the forfeiture on this basis as well. With regard to an
       individual's or entity's inability to pay, the Commission has
       determined that, in general, gross revenues are the best indicator of
       an ability to pay a forfeiture. We have reviewed the documents that
       Mr. Blake submitted in support of his inability to pay claim, and find
       sufficient basis to reduce the forfeiture to $1,700. However, we
       caution Mr. Blake that a party's inability to pay is only one factor
       in our forfeiture calculation analysis, and is not dispositive. We
       have previously rejected inability to pay claims in cases of repeated
       or otherwise egregious violations. Therefore, future violations of
       this kind may result in significantly higher forfeitures that may not
       be reduced due to Mr. Blake's financial circumstances.

   IV. ordering clauses

    7. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Commission's rules, that the Petition for Reconsideration filed by
       Dexter Blake IS GRANTED IN PART AND DENIED IN PART.

    8. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,
       Dexter Blake IS LIABLE FOR A MONETARY FORFEITURE in the amount of one
       thousand seven hundred dollars ($1,700) for violation of Section 301
       of the Act.

    9. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Memorandum Opinion and Order. If the forfeiture
       is not paid within the period specified, the case may be referred to
       the U.S. Department of Justice for enforcement of the forfeiture
       pursuant to Section 504(a) of the Act.  Dexter Blake shall send
       electronic notification of payment to NER-Response@fcc.gov on the date
       said payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account number and FRN referenced above. 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. 

   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. 

   10. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
       sent by both First Class Mail and Certified Mail, Return Receipt
       Requested, to Mr. Blake at his address of record and to Lewis H.
       Goldman, counsel for Mr. Blake, at 45 Dudley Court, Bethesda, Maryland
       20814.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   See Dexter Blake, Petition for Reconsideration (Aug. 23, 2010) (on file in
   EB-08-NY-0291) (Petition).

   Dexter Blake, Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur., Northeast
   Region 2010) (Forfeiture Order), aff'g, Notice of Apparent Liability for
   Forfeiture, NAL/Acct. No. 200932380004 (Enf. Bur., New York Office rel.
   Mar. 3, 2009) (NAL).

   Forfeiture Order, supra note 4. See 47 U.S.C. S: 301.

   NAL, supra note 4.

   Forfeiture Order, supra note 5.

   Petition at 1.

   Id.

   47 C.F.R. S:1.106(c).

   See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
   FCC Rcd 4387, 4387, para. 3 (holding that ignorance of the law or
   inadvertent mistakes are not mitigating circumstances that can serve to
   justify a forfeiture reduction); Paisa 2 Car and Limousine Service, Inc.,
   Memorandum Opinion and Order, 26 FCC Rcd 14423, 14424, para. 5 (Enf. Bur.
   2011) (declining to cancel forfeiture based on licensee's claim that it
   did not know that it was operating on unauthorized frequency); Kenneth
   Paul Harris, Sr., 15 FCC Rcd 12933, 12935, para. 7 (Enf. Bur. 2000)
   (denying a mitigation claim of a broadcast licensee, stating that
   licensee's ignorance of the law did not excuse the unauthorized transfer
   of the station); Lakewood Broadcasting Service, Inc., 37 FCC 2d 437, 438,
   para. 6 (1972) (denying a mitigation claim of a broadcast licensee who
   asserted an unfamiliarity with the station identification requirements).

   See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
   2088, 2089 (1992) (forfeiture not deemed excessive where it represented
   approximately 2.02 percent of the violator's gross revenues); Local Long
   Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
   deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
   Order, 15 FCC Rcd 8640 (2002)  (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).

   See 47 U.S.C. S: 503(b)(2)(E) (requiring Commission to take into account
   the nature, circumstances, extent, and gravity of the violation and, with
   respect to the violator, the degree of culpability, any history of prior
   offenses, ability to pay, and such other matters as justice may require).

   Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
   Region 2011) (holding that violator's repeated acts of malicious and
   intentional interference outweigh evidence concerning his ability to pay)
   (petition for reconsideration pending); Hodson Broadcasting Corp.,
   Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
   permittee's continued operation at variance with its construction permit
   constituted an intentional and continuous violation, which outweighed
   permittee's evidence concerning its ability to pay the proposed
   forfeitures). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd 2281,
   2284, para. 8 (2012) (reducing forfeiture based on inability to pay, but
   warning that future violations of the same kind may not be reduced due to
   financial circumstances).

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 504(a).

   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.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 12-1954

   4

   Federal Communications Commission DA 12-1954