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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-FIELDSCR-12-00002174
Pierre Nixon Jean NAL/Acct. No.: 201232600011
West Palm Beach, FL FRN: 0021841358
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 14, 2012 Released: June 14, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Pierre Nixon Jean apparently willfully violated Section 301 of
the Communications Act of 1934, as amended (Act), by operating an
unlicensed radio transmitter on the frequency 92.5 MHz in West Palm
Beach, Florida. We conclude that Mr. Jean is apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000).
2. On February 21, 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 92.5 MHz to
an FM transmitting antenna mounted on the roof of an apartment
building in West Palm Beach, Florida. Agents heard the station
identify itself on the air as "Exitfm.com." The agents determined that
the signals on 92.5 MHz exceeded the limits for operation under Part
15 of the Commission's rules (Rules), and therefore required a
license. Commission records showed that no authorization was issued to
Mr. Jean or to anyone else for operation of an FM broadcast station at
or near this address.
3. Agents from the Miami Office learned from the property owner of the
apartment building that Pierre Nixon Jean rented an apartment in the
building from October 1, 2010 until March 31, 2012. The building owner
identified a picture of Mr. Jean from the Internet as the person
renting the apartment. The building owner stated that, in December
2011, he observed radio transmitting equipment in Mr. Jean's apartment
when he entered the unit for a fire alarm issue. The building owner
also stated that he told Mr. Jean to remove the radio transmitting
equipment after he spoke to the agent on March 12, 2012. On May 2,
2012, an agent from the Miami Office confirmed that the antenna had
been removed from the apartment building rooftop.
4. Agents from the Miami Office also found additional information on the
Internet connecting Mr. Jean to the unlicensed station. The contact
number found on one of the station's websites matched the phone number
listed by Mr. Jean on his rental application for the apartment.
Another website for the unlicensed station contained an advertisement,
which read: "Advertisement Contact Pe Niko . . . ." The Facebook page
"Pierre Nixon Jean (Per Niko)" listed Mr. Jean as "director radio
exitfm www.myexitfm.com Owner," and showed a picture of Mr. Jean as a
disc jockey, standing behind the microphone in what appears to be a
radio station studio.
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
A. Unlicensed Broadcast 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
7. Based on the record evidence in this case, we find that Mr. Jean
apparently willfully violated Section 301 of the Act, by operating an
unlicensed radio transmitter on the frequency 92.5 MHz in West Palm
Beach, Florida. On February 21, 2012, agents from the Miami Office
determined that an unlicensed radio station on the frequency 92.5 MHz
operated from an apartment building in West Palm Beach, Florida. A
review of the Commission's records revealed that no license or
authorization was issued to anyone to operate a radio station on 92.5
MHz at this location. Under Section 301, Mr. Jean can be said to have
"operated" the unlicensed radio station on 92.5 MHz because the
evidence shows that Mr. Jean exercised control over the general
conduct or management of the station. Specifically, the facts show
that Mr. Jean was responsible for operation of the station. The
property owner of the apartment building, where the unlicensed station
was located, observed radio transmitting equipment in Mr. Jean's
apartment unit. The property owner also told Mr. Jean to remove the
radio transmitting equipment from the building, which was done. The
unlicensed station identified itself as "Exitfm.com," and Mr. Jean's
telephone number was listed as the contact phone number on the
station's webpage. The webpage also identified Mr. Jean as the
"director radio exitfm www.myexitfm.com Owner." All of these facts
indicate that Mr. Jean consciously operated and/or otherwise was
involved in the general conduct or management of the unlicensed
station. Therefore, we find that Mr. Jean apparently willfully
violated Section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
B. Proposed Forfeiture Amount
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. In doing so, we find that the violation here warrants a
proposed forfeiture above the base amount. Our records show that, in
September 2010, agents from the Miami Office previously warned Mr.
Jean that his operation of an unlicensed station on 92.5 MHz at
another location in Florida was unlawful. The fact that Mr. Jean
continued to operate after being put on notice that his unlicensed
operation contravened the Act, the Commission's rules, and related
Commission orders demonstrates a deliberate disregard for 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. Jean is
apparently liable for a forfeiture in the amount of $15,000.
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, Pierre Nixon Jean 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.
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, Pierre Nixon
Jean SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
11. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the Account Number and FRN
referenced above. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must also be submitted. An FCC Form 159
may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 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). Payment by check or money order must be made
payable to the order of the Federal Communications Commission. Such
payments 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. 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 E-mail:
ARINQUIRIES@fcc.gov. Pierre Nixon Jean shall also 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 1.16 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. Pierre Nixon
Jean 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
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 Pierre Nixon Jean at his address of
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
47 C.F.R. 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.
Agents from the Miami Office obtained a copy of the lease and rental
application for Mr. Jean's apartment.
The date of birth and social security information submitted in Mr. Jean's
rental application for the apartment matched official records for Mr.
See Radio Exit FM 92.5 FM, www.radioexitfm.com (last visited May 14,
MyExitFM, www.myexitfm.com (last visited Mar. 7, 2012).
visited Apr. 26, 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 (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
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. See 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).
See supra note 5.
See supra note 7.
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).
On September 12, 2010, agents from the Miami Office issued a verbal
warning (see Case No. EB-10-MA-0174) to a person identified as "DJ Nixon"
for operation of an unlicensed radio station on 92.5 MHz at a house in
West Palm Beach. Agents have now identified "DJ Nixon" as Mr. Jean from
photographs of Mr. Jean posted on the Internet. In addition, on September
12, 2010, agents from the Miami Office observed a blue Ford taxicab parked
in front of the house, which was the source of the unlicensed station,
with a license plate that matched the information Mr. Jean provided on his
apartment rental application.
See Robert Brown, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur. 2011),
aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13740 (Enf.
Bur. 2010) (petition for reconsideration pending); Loyd Morris, Forfeiture
Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff'g, Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010) (petition for
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
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 12-939
Federal Communications Commission DA 12-939