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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-MA-0188
)
Jeffrey Darius NAL/Acct. No.: 201232600008
)
Miami, Florida FRN: 0021554308
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 6, 2012 Released: March 6, 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 Jeffrey Darius 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 88.7 MHz
from a rooftop suite in Miami, Florida. We conclude that Mr. Darius is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On September 29, 2011, in response to a complaint of interference by
AT&T Mobility, agents from the Enforcement Bureau's Miami Office
(Miami Office) observed two antennas typically used by unlicensed
broadcast stations mounted on the roof of a building in Miami,
Florida. Agents interviewed the building owner, who stated that the
rooftop suite was rented to Jeffrey Darius. The tenant listed in the
lease for the rooftop suite was an entity called "Blaze," but Mr.
Darius signed the lease as guarantor for Blaze and listed his title as
"C.E.O." Agents left a hand-delivered Notice of Unlicensed Operation
(NOUO) addressed to Mr. Darius with the building owner, who stated he
would deliver the notice to Mr. Darius. Later on September 29, 2011,
an agent with the Miami Office heard transmissions on the frequency
88.7 MHz in which the station identified itself as "88.7 Da Blaze FM."
The station's phone number announced on the air matched the phone
number for Mr. Darius provided by the building owner.
3. On November 3, December 1, and December 7, 2011, agents from the Miami
Office used direction-finding techniques to locate the source of radio
frequency transmissions on the frequency 88.7 MHz to an FM
transmitting antenna mounted on the roof of the building in Miami
previously identified on September 29, 2011. On November 3, and
December 7, 2011, the agents determined that the signals on 88.7 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 issued to Mr. Darius or to anyone for
operation of an FM broadcast station at or near this address.
4. On December 9, 2011, agents from the Miami Office met with the
building owner, who moved the unlicensed station's transmitting
equipment, which consisted of an FM power amplifier, an FM exciter,
and transmitting antenna, from the rooftop to a storage room. That
same day, the agents interviewed Mr. Darius in the building, and he
admitted that: (1) the transmitting equipment was his; (2) he operated
the station with a partner; and (3) that he was a disc jockey for the
station previously operating on 88.7 MHz. The phone number provided by
Mr. Darius to the agents matched the phone number for the station
announced on the air on "88.7 Da Blaze FM." Mr. Darius also stated
that he was aware that he needed a license to operate the station.
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 Operations
6. 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. On
September 29, November 3, December 1, and December 7, 2011, Mr. Darius
operated an unlicensed radio station on the frequency 88.7 MHz from a
rooftop space he rented on behalf of an entity for which he served as
guarantor and "C.E.O." Mr. Darius admitted owning the transmitting
equipment and operating the unlicensed station. A review of the
Commission's records revealed that Mr. Darius did not have a license
to operate a radio station at this location. Because Mr. Darius
consciously operated the station and on more than one day, the
apparent violation of the Act was both willful and repeated. Based on
the evidence before us, we find that Mr. Darius apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
A. 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. In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. The fact that Mr. Darius
repeatedly operated an unlicensed station when he knew that such
action was unlawful-based on his own admission and after issuance of a
NOUO-demonstrates a deliberate disregard for the Act and the
Commission's requirements. Thus, we find that an additional upward
adjustment of $5,000 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. Darius is
apparently liable for a forfeiture in the amount of $15,000.
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, Jeffrey Darius 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 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, Jeffrey
Darius 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 credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account number and FRN
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. For questions about payment procedures,
contact the Financial Operations Group Help Desk at 1-877-480-3201 or
Email: ARINQUIRIES@fcc.gov. Jeffrey Darius shall send electronic
notification on the date said payment is made to
SCR-Response@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. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Miami Office, P.O. Box 520617, Miami, FL
33152-0617, and must include the NAL/Acct. No. referenced in the
caption. The written statement shall also be emailed 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 regular mail to Jeffrey Darius 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.
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.
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, e.g., Robert Brown, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13740 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending); Loyd Morris, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur.,
Northeast Region 2011) (imposing a $15,000 forfeiture for violations of
Section 301), aff'g Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 13736 (Enf. Bur., Boston Office 2010) (petition for reconsideration
pending).
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.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-339
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Federal Communications Commission DA 12-339