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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-MA-0133
)
Robenson Thermitus NAL/Acct. No.: 201232600004
)
Miami, Florida FRN: 0021426010
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 20, 2012 Released: January 20, 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 Robenson Thermitus 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 98.7 MHz in
Miami, Florida. We conclude that Mr. Thermitus is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On July 11, 2011, in response to a complaint, 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 98.7 MHz to an FM transmitting antenna
mounted in a tree at the back of a residence in Miami, Florida. The
agents observed that, when tuned to 98.7 MHz, the Radio Data System
(RDS) display on their vehicle radio showed "98.7 FM ENERGY." 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. A review of the Commission's records
revealed that no license or authorization was issued to Mr. Thermitus
or anyone else to operate a radio station on 98.7 MHz at this
location. Subsequently, an agent from the Miami Office found that the
station's website, www.energyfm987.com, listed "DJ Oneway" as a host
of Energy FM and the number "1 786.357.5347" as DJ Oneway's contact
phone number. The domain name, energyfm987.com, was registered to
Robenson Thermitus and listed 786-357-5347 as his contact phone
number.
3. On August 16, 2011, agents from the Miami Office returned to the same
residence in Miami, Florida where the station was located on July 11,
2011. The agents observed that the antenna was still mounted in the
tree, and that a coaxial cable from the antenna entered the back of
the residence. The agents interviewed the owner of the residence, who
stated that a man known as "Oneway" installed and owned the radio
transmitting equipment, which was located in a locked room in the back
of her house. The owner then called "Oneway" from her cellular phone
and handed the phone to an agent. The man on the phone stated to the
agent that he would make sure the equipment was removed, but did not
admit to being the operator or owner of station. The agent observed
that the phone number "786-357-5347" and "Radio Iternette" were
displayed on the phone during the call. After the agents left the
residence, they observed that the radio station on the frequency 98.7
MHz had resumed operations. They used direction-finding techniques to
locate the source of radio frequency transmissions on the frequency
98.7 MHz to the same FM transmitting antenna mounted in the tree at
the back of the residence.
4. Florida Department of State Division of Corporations records list Mr.
Thermitus as the registered agent for a business called "DJ Oneway
Inc." Florida Motor Vehicle Registration records show Mr. Thermitus
registered a vehicle in 2007 with the license plate number "DJ1WAY."
DJ Oneway's birthday listed on Facebook matches Mr. Thermitus's date
of birth listed on official records. DJ Oneway's phone number is
listed on Facebook as "1 786.357.5347 Mobile." A cached Facebook page
"Taste Cafe By DJ Oneway" stated "DJ Oneway Live on the Air Every
Morning from 8:00 AM Click the Link www.energyfm98.7.com to See Me
Live From the Studio." Agents from the Miami Office also identified
Mr. Thermitus as DJ Oneway by comparing his Florida driver's license
photograph to pictures of DJ Oneway posted on the Internet.
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.
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 of the Act 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."
7. Based on the record evidence in this case, we find that Mr. Thermitus
apparently willfully and repeatedly violated Section 301 of the Act,
by operating an unlicensed radio transmitter on the frequency 98.7 MHz
in Miami, Florida. On July 11 and August 16, 2011, agents from the
Miami Office determined that an unlicensed radio station on the
frequency 98.7 MHz operated from a residence in Miami, Florida. A
review of the Commission's records revealed that no license or
authorization was issued to anyone to operate a radio station on 98.7
MHz at this location. Under Section 301, Mr. Thermitus can be said to
have "operated" the unlicensed radio station on 98.7 MHz because he
demonstrated control over the general conduct or management of the
station. Specifically, the facts show that Mr. Thermitus was
responsible for operation of the station. The owner of the residence
housing the station stated that a man named "Oneway" installed and
owned the radio transmitting equipment in her home. The station's
website and the information and images found on social networking
websites establish that someone known as "DJ Oneway" hosted a daily
radio program on 98.7 MHz. The phone number and date of birth for DJ
Oneway listed on the Internet matches Mr. Thermitus's phone number and
birthdate listed in official records. Mr. Thermitus was identified by
agents from the Miami Office as "DJ Oneway" by comparing the
photographs of "DJ Oneway" on the Internet to Mr. Thermitus's Florida
driver's license photograph. Mr. Thermitus registered the domain name
for the station and a business known as "DJOneway Inc." Mr. Thermitus
also registered a vehicle with the Florida license plate number
"DJ1WAY." All of these facts convince us that Mr. Thermitus operated
the unauthorized station. Furthermore, because Mr. Thermitus
consciously operated the station on more than one day, we find the
apparent violation was not only willful, but also repeated. Therefore,
based on the foregoing, we find that Mr. Thermitus apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment without the required Commission
authorization.
8. 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. Thermitus is apparently liable for a forfeiture of $10,000.
IV. ORDERING CLAUSES
9. 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, Robenson Thermitus
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section 301
of the Act.
10. 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, Robenson
Thermitus SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Robenson Thermitus will send electronic notification on the date said
payment is made to SCR-Response@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 1.80(f)(3) and 1.16 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, and
include the NAL/Acct. number referenced in the caption. Robenson
Thermitus also shall email 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 regular mail to Robenson Thermitus 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.
98.7 FM Energy Homepage, www.energyfm.com (last visited July 18-19,
2011).
Go Daddy Homepage,
http://who.godaddy.com/whois.aspx?domain=energyfm987.com&prog_id=GoDaddy
(last visited July 19, 2011).
Florida Department of State Division of Corporations Homepage,
http://www.sunbiz.org/ (last visited Aug. 17, 2011).
Lexis Nexis Investigative Portal Homepage,
http://www.lexisnexis.com/government/solutions/investigative/, Motor
Vehicle Registrations database (last visited Aug. 17, 2011).
Facebook Homepage, www.facebook.com/onthemix.djoneway (last visited Sept.
23, 2011).
Lexis Nexis Investigative Portal Homepage,
http://www.lexisnexis.com/government/solutions/investigative/ (last
visited Aug. 17, 2011).
Facebook Homepage, www.facebook.com/onthemix.djoneway (last visited Sept.
23, 2011).
Facebook Homepage, http://www.facebook.com/group.php?gid=107879649241349
(cached on Google) (last visited Sept. 23, 2011).
MySpace Homepage, www.myspace.com/djonewayonthemix/photos (last visited
Sept. 23, 2011).
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) (Southern
California Broadcasting Co.).
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).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; 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.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-60
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Federal Communications Commission DA 12-60