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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).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-339

                                       4

   Federal Communications Commission DA 12-339