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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Whisler Fleurinor Fort Lauderdale, Florida ) ) ) ) ) )
   File No.: EB-11-MA-0123 NAL/Acct. No.: 201232600006 FRN: 0020655106




                                FORFEITURE ORDER

   Adopted: February 8, 2013 Released: February 8, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of twenty-five thousand dollars ($25,000) to Whisler
       Fleurinor for willfully and repeatedly violating Section 301 of the
       Communications Act of 1934, as amended (Act).^ The violations involved
       Mr. Fleurinor's operation of an unlicensed radio transmitter on the
       frequency 99.5 MHz in Fort Lauderdale, Florida.

   II. BACKGROUND

    2. The Enforcement Bureau's records reflect that Mr. Fleurinor has been
       cited multiple times for unlicensed operation of a radio broadcast
       station since 2008. The first instance was on January 14, 2008, when
       the Bureau's Miami Office issued a Notice of Unlicensed Operation
       (NOUO) to Mr. Fleurinor after it was determined that he was operating
       a radio station on the frequency 97.7 MHz from a commercial property
       in Fort Lauderdale, Florida.^ The NOUO warned Mr. Fleurinor that
       operation of an unlicensed station violated the Act and the
       Commission's rules and could result in further enforcement action.^ On
       March 16 and August 24, 2010, agents from the Miami Office used
       direction-finding techniques to determine that an unlicensed broadcast
       station operating on the frequency 99.5 MHz was located in a
       commercial property in Fort Lauderdale, Florida, which according to
       Florida property records was owned by Mr. Fleurinor.^ During the
       August 24, 2010 inspection of the unlicensed station, Mr. Fleurinor
       admitted to owning the antenna and transmitter.^ After confirming the
       violation, Mr. Fleurinor was hand-delivered another NOUO.^

    3. Despite receipt of the second NOUO, agents from the Miami Office
       confirmed on August 31, 2010 that transmissions on 99.5 MHz were still
       emanating from the antenna located on Mr. Fleurinor's commercial
       property.^ Consequently, on March 4, 2011, the Miami Office issued the
       first of two Notices of Apparent Liability (NAL) to Mr. Fleurinor for
       operating an unlicensed radio station, in violation of Section 301 of
       the Act.^ The First NAL proposed a $20,000 forfeiture, which included
       an upward adjustment in view of the record evidence that Mr. Fleurinor
       continued to operate the radio station despite receiving prior notices
       of the violation.^ Mr. Fleurinor responded to the First NAL,
       acknowledging the violations, but urging cancellation or reduction of
       the forfeiture based on an inability to pay claim.^ On October 20,
       2011, the South Central Region of the Enforcement Bureau issued a
       Forfeiture Order, affirming its findings in the First NAL, but agreed
       to reduce the forfeiture amount to $500 based solely on Mr.
       Fleurinor's inability to pay claim.^ Thereafter, Mr. Fleurinor paid
       the $500 forfeiture.

    4. On August 10, November 3, and December 7, 2011, agents from the Miami
       Office used direction-finding techniques to locate the source of radio
       frequency transmissions on the frequency 99.5 MHz, and again traced it
       to Mr. Fleurinor's commercial property in Fort Lauderdale, Florida,
       the same address which was identified in the First NAL.^ As a result,
       the Miami Office issued to Mr. Fleurinor a second Notice of Apparent
       Liability for Forfeiture  (Second NAL) ^ on February 1, 2012, which
       proposed a $25,000 forfeiture.^ The proposed forfeiture included a
       $15,000 upward adjustment because of the deliberate nature of the
       violation, given that Mr. Fleurinor had already been fined and issued
       multiple NOUOs for the same violation.^ Mr. Fleurinor submitted a
       response to the Second NAL, denying that he violated the Act or any
       FCC order.^ More specifically, Mr. Fleurinor asserts that "there [has]
       been no radio transmission of any kind for at least 6 months, [and
       that] there is no radio equipment at this location."^ Mr. Fleurinor
       also asserts that the "only remnant of any radio equipment is a roof
       antenna . . . which has been and continues to be unconnected and not
       operational."^ Finally, Mr. Fleurinor states that he is unable to pay
       the forfeiture in any event and, therefore, urges cancellation on that
       basis as well.^

   III. DISCUSSION

    5. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Commission's
       rules (Rules),^ and the Forfeiture Policy Statement.^ In examining Mr.
       Fleurinor's response, Section 503(b)(2)(E) of the Act requires that
       the Commission take into account the nature, circumstances, extent,
       and gravity of the violation 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.^ We have considered Mr.
       Fleurinor's response to the NAL in light of these statutory factors
       and find that neither cancellation nor reduction of the forfeiture is
       warranted for the reasons discussed below.

   A. Unlicensed Broadcast Operations

    6. We affirm the NAL's finding that Mr. Fleurinor violated Section 301 of
       the Act.^ 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.^ As reflected in the NAL, agents from the Miami
       Office determined that unlicensed radio transmissions on the frequency
       99.5 MHz emanated from the antenna located on top of Mr. Fleurinor's
       commercial property on August 10, November 3, and December 7, 2011.
       Mr. Fleurinor admits in his NAL Response that the antenna at issue was
       his, but denies that he was operating the unlicensed station on the
       specified dates by asserting that any radio transmission had already
       ceased "at least 6 months" ago and that the radio equipment has since
       been "unconnected."^

    7. We do not find Mr. Fleurinor's assertions to be credible, given the
       more reliable record evidence adduced by the Miami Office over a
       period of several months, and in view of Mr. Fleurinor's past history
       of repeated noncompliance despite promises to comply. The Bureau's
       uncontroverted evidence shows that the Miami agents, during each of
       the three dates of the investigation, observed no other antennas in
       the general vicinity of Mr. Fleurinor's antenna, rendering Mr.
       Fleurinor's antenna as the definitive source of the unlicensed radio
       transmissions. The transmissions were also operating on the same
       frequency (i.e., 99.5 MHz) that Mr. Fleurinor previously conceded to
       using for his unlicensed radio operations. The consistency of the
       results of the agents' direction-finding techniques over three
       different months make it highly unlikely that the agents erred in
       their determination as to the source of the unlicensed radio
       transmissions. Further, Mr. Fleurinor has not submitted any objective
       evidence that would raise questions about the accuracy of the agents'
       findings or any evidence that could support his assertions. Therefore,
       based on the evidence before us, we are convinced that Mr. Fleurinor
       willfully and repeatedly violated Section 301 of the Act by operating
       radio transmission equipment (again) without the required Commission
       authorization.

   B. Denial of Inability to Pay Claim

    8. We also deny Mr. Fleurinor's request that we cancel the $25,000
       proposed forfeiture based on his inability to pay claim. As indicated
       above, Section 503(b)(2)(E) of the Act states that, in determining the
       amount of a forfeiture penalty, the Commission will take into account
       the nature, circumstances, extent, and gravity of the violation 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.^ We have reviewed Mr. Fleurinor's financial
       documentation, which, under ordinary circumstances, and standing
       alone, may arguably support a reduction of the forfeiture.^ We
       emphasize, however, that an individual's ability (or inability) to pay
       a forfeiture is just one of the factors we consider in determining the
       appropriate forfeiture penalty for violations of the Act and the
       Rules.^ In this instance, we find that all the aforementioned Section
       503(b)(2)(E) factors militate against cancellation or reduction of the
       forfeiture notwithstanding Mr. Fleurinor's purported financial
       circumstances.

    9. The record evidence in this case shows that Mr. Fleurinor is a repeat
       offender, having already received and paid a forfeiture for the very
       same violations at issue here; and has been in violation, either
       continuously or intermittently since at least 2008. With respect to
       the more recent violations, there is no question that Mr. Fleurinor
       was fully aware that his actions violated the Act. As such, his repeat
       violations of the statute demonstrate a complete disregard for the
       Commission's authority. Moreover, Mr. Fleurinor's further violations
       of the Act after being issued a Forfeiture Order (that substantially
       reduced a $20,000 proposed forfeiture in the First NAL to $500 based
       solely on consideration of his inability to pay claim) convinces us
       that the previous $500 forfeiture imposed (which he has paid) was not
       a sufficient deterrent. There simply is nothing on the record in this
       case, including the documents that Mr. Fleurinor submitted in support
       of his inability to pay claim, that warrants any leniency or
       mitigation of the proposed forfeiture amount.^ Therefore, after
       consideration of the entire record and the factors listed above, we
       find that a forfeiture in the amount of $25,000 is warranted.^ We also
       caution Mr. Fleurinor that future violations of the same kind may
       result in more severe enforcement action, including but not limited to
       higher monetary forfeitures, criminal prosecution, and the in rem
       seizure of his equipment.

   IV. ORDERING CLAUSES

   10. 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(f)(4) of the Commission's rules, Whisler
       Fleurinor IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for violations of Section 301
       of the Act.^

   11. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Whisler Fleurinor shall send electronic
       notification of payment to SCR-Response@fcc.gov on the date said
       payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account number and FRN referenced above. Regardless of the form of
       payment, a completed FCC Form 159 (Remittance Advice) must be
       submitted.^ 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).   Below are additional
       instructions you should follow based on the form of payment you
       select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   12. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer--Financial Operations, Federal
       Communications Commission, 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 by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

   13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by both First Class and Certified Mail, Return Receipt Requested,
       to Whisler Fleurinor at his address of record and to his attorney,
       Rocco G. Marucci, P.A., at 116 Southeast 6^th Court, Fort Lauderdale,
       FL 33301.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301.

   ^ See Whisler Fleurinor, Notice of Unlicensed Operation (Enf. Bur., Miami
   Office rel. Jan. 14, 2008) (First NOUO). The Miami Office received a
   return receipt for the First NOUO signed by Mr. Fleurinor and a response
   to the First NOUO signed by Mr. Fleurinor's attorney. See Letter from
   Rocco G. Marucci, P.A. to Stephanie Dabkowski, Resident Agent, Miami
   Office (Jan. 22, 2008). In the response, Mr. Fleurinor's attorney stated
   that "Mr. Fleurinor had no intention of violating any federal or state
   laws with respect to any radio transmissions from his business. He has
   advised that he will have the equipment checked to insure that it complies
   with the FCC levels and does not violate any laws or regulations."

   ^ Id.

   ^ Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC
   Rcd 2478 (Enf. Bur. 2011) (First NAL).

   ^ Id. at 2478, para 3.

   ^ Id. & n.3.

   ^ First NAL, 26 FCC Rcd at 2479.

   ^ See supra note 4.

   ^ Id.

   ^ See Letter from Lewis H. Goldman, P.C., attorney for Mr. Fleurinor, to
   Diane Law-Hsu, Regional Counsel, South Central Region, Enforcement Bureau
   (Aug. 2, 2011) (on file in EB-10-MA-0048).

   ^ Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf. Bur. 2011)
   (forfeiture paid).

   ^ Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 27 FCC
   Rcd 489 (Enf. Bur. 2012) (Second NAL). A comprehensive recitation of the
   facts and history of this case can be found in the Second NAL and is
   incorporated herein by reference.

   ^ Id.

   ^ Id. at 491, para. 6.

   ^ See Letter from Rocco C. Marucci, P.A., Counsel for Whisler Fleurinor,
   to Stephanie Dabkowski, Resident Agent, Miami Office at 1 (Mar. 30, 2012)
   (on file in EB-11-MA-0123) (Second NAL Response). Mr. Fleurinor requested
   and obtained an extension in which to submit a response to the NAL.

   ^ Id. at 1.

   ^ Id.

   ^ Mr. Fleurinor also proposes to settle the proceeding with a payment of
   $500 and with no admission of guilt. The Bureau respectfully declines his
   offer.

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See NAL, supra note 12.

   ^ 47 U.S.C. S 301.

   ^ Second NAL Response at 1.

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ Indeed, we have already substantially reduced the forfeiture proposed
   against Mr. Fleurinor in the First NAL from $20,000 to $500 based on his
   inability to pay claim, yet he continued with his unlicensed radio
   operations. As we have previously warned unlicensed radio operators found
   in violation of Section 301, future violations of the same kind may result
   in significantly higher forfeitures which may not be reduced due to
   financial circumstances. See, e.g., Michael W. Perry, Forfeiture Order, 27
   FCC Rcd 2281, 2284, para. 8 (2012) (fined for unlicensed radio
   operations).

   ^ See id. at 2283-84, para. 8.

   ^ See, e.g., Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur.
   2011) (holding that violator's repeated acts of malicious and intentional
   interference outweigh evidence concerning his ability to pay) (petition
   for reconsideration pending); Hodson Broadcasting Corporation, Forfeiture
   Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (permittee's continued operation
   at variance with its construction permit constituted an intentional and
   continuous violation, which outweighed permittee's evidence concerning its
   ability to pay the proposed forfeitures).

   ^ If Mr. Fleurinor believes that paying this amount presents financial
   difficulties, we note that he could always pursue an installment plan to
   lessen the immediate impact of the forfeiture.

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4).

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 13-175

   6

   Federal Communications Commission DA 13-175