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                                   Before the

                       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
   Bureau:

   I. INTRODUCTION

    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).

   II. BACKGROUND

    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.

   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 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
       exercised."

    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
       proposed forfeiture.

   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
       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 first class mail to Pierre Nixon Jean at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Steven DeSena

   Resident Agent

   Miami Office

   South Central Region

   Enforcement Bureau

   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.
   Jean.

   See Radio Exit FM 92.5 FM, www.radioexitfm.com (last visited May 14,
   2012).

   MyExitFM, www.myexitfm.com (last visited Mar. 7, 2012).

   Facebook,
   https://www.facebook.com/people/Pierre-Nixon-Jean/100001580059336 (last
   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
   1362.

   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 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
   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 12-939

                                       4

   Federal Communications Commission DA 12-939