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Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Vicot Chery Spring Valley, New York ) ) ) ) ) ) ) File
Number: EB-09-NY-0318 NAL/Acct. No: 201132380001 FRN: 0019471259

FORFEITURE ORDER

Adopted: November 25, 2013 Released: November 26, 2013

By the Regional Director, Northeast Region, Enforcement Bureau:

I. introduction

1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Vicot Chery for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act).^ The noted violations involved Mr.
Chery's operation of an unlicensed radio transmitter on the frequency
90.5 MHz in Spring Valley, New York.

II. Background

2. On October 22, 2010, the Enforcement Bureau's New York Office (New
York Office) issued a Notice of Apparent Liability for Forfeiture
(NAL)^ to Mr. Chery for operation of an unlicensed radio station on
90.5 MHz from within a building leased by Mr. Chery for the operation
of his businesses - P.C. Taxi Services, LLC and P.C. Auto Repair,
Inc.^ In response to the NAL,^ Mr. Chery urges cancellation or
reduction of the proposed forfeiture because he claims that (1) he was
"not aware of what was going on"^ at the station, (2) he was contacted
by FCC agents without the knowledge of his attorney, and (3) the
proposed forfeiture would pose an "absolute hardship."^

III. discussion

3. 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.
Chery'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.^ As discussed below, we
have considered Mr. Chery's response in light of these statutory
factors, and find that neither cancellation nor reduction of the
forfeiture is warranted.

4. First, we affirm the NAL's finding that Mr. Chery 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.^ For the purposes of Section 301 of the Act,
the word "operate" has been interpreted to mean "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."^

5. As discussed in the NAL, agents from the New York Office determined
that, on October 26, 28, and 29, 2009, an unlicensed radio station was
operating on 90.5 MHz from 301 Roosevelt Avenue in Spring Valley, New
York, a building leased by Mr. Chery for the operation of his
businesses. During the inspection on October 29, 2009, Mr. Chery
showed the agents the location of the station's transmitter, which was
in a locked room at his P.C. Taxi business, and in the upstairs attic
located behind a stack of car tires and hidden from plain view. Mr.
Chery was able to turn off the transmitter at the agents' request and
the operation ceased. He also led the agents to the roof where the
station's antenna was located and agreed to remove the antenna.^ In
light of Mr. Chery's actions during the inspection, we reject his
claim that he was not aware of the station's operation. In order to
find that Mr. Chery willfully violated Section 301 of the Act, we are
not required to determine that he intended to commit the violation.
Moreover, because Section 301 of the Act provides that "no person
shall use or operate" radio transmission equipment, liability for
unlicensed operation may be assigned to any individual taking part in
the operation of the unlicensed station, regardless of who else may be
responsible for the operation.^ Together, the facts show that Mr.
Chery exercised control of the station and was involved in the general
conduct or management of the station, and as such was the "operator"
of the station. Based on the evidence before us, we find that Mr.
Chery willfully and repeatedly violated Section 301 of the Act by
operating the unlicensed radio station on 90.5 MHz in Spring Valley,
New York.^

6. Mr. Chery also claims that the proposed forfeiture should be cancelled
or reduced because he was contacted by the agents from the New York
Office without the knowledge of his attorney. Specifically, Mr.
Chery's counsel claims that the agents conducted the inspection and
interviewed Mr. Chery without his attorney present and therefore any
"evidence taken under these circumstances should be discounted."^ We
disagree. First, the FCC inspection is authorized under Section 303(n)
of the Act, which states that the Commission has the "authority to
inspect all radio installations associated with stations required to
be licensed by any Act . . . ."^ The radio station at issue in this
case was required to be licensed by the Commission. Second, the FCC
inspection is not a criminal investigation and any questioning that
occurs as part of the fact-finding process in a non-custodial, civil,
administrative proceeding, does not require the presence of counsel.^
The FCC agents were investigating a complaint of an unlicensed radio
station on 90.5 MHz and traced the source of the transmissions to the
radio station operating from Mr. Chery's business location, thereby
prompting questions to Mr. Chery and the request to inspect as part of
the fact-gathering process. Further, the facts of this case show that
Mr. Chery voluntarily led the agents to certain parts of his business
where the antenna and radio transmitter were located, and also
voluntarily responded to questions during the inspection. Indeed, it
was not until after the inspection and a Notice of Unlicensed
Operation (NOUO)^ was issued to Mr. Chery that the agents first became
aware that Mr. Chery had retained counsel, when counsel submitted a
response to the NOUO.^ Based on all the foregoing reasons, we find no
merit in Mr. Chery's argument and decline to reduce or cancel the
forfeiture on these grounds.

7. Finally, we decline to cancel or reduce the forfeiture amount based on
Mr. Chery's alleged inability to pay. The NAL specifically stated that
a cancellation or reduction of the proposed forfeiture based on
inability to pay will not be considered unless the petitioner provides
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting principles ; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status.^ Mr. Chery did not submit any documentation in
support of his request for a reduction based on inability to pay and,
although Enforcement Bureau staff provided Mr. Chery an additional
opportunity to submit documentation in support of his request, no such
documentation has been submitted to date.^ We therefore have no basis
for assessing Mr. Chery's inability to pay claim. We find that a
forfeiture in the amount of $10,000 is warranted.^

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(f)(4) of the Commission's rules, Vicot Chery IS
LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for violation of Section 301 of the Act.^

9. 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.^ Vicot Chery shall send electronic
notification of payment to NER-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.

10. Any request for making full payment over time 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,
[1]ARINQUIRIES@fcc.gov.

11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Vicot Chery at his address of record, and to his
counsel, Mitchell P. Schecter, at 250 Route 59, Spring Valley, New
York 10977.

FEDERAL COMMUNICATIONS COMMISSION

G. Michael Moffitt

Regional Director, Northeast Region

Enforcement Bureau

^ 47 U.S.C. S 301.

^ Vicot Chery, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
14596 (Enf. Bur. 2012) (NAL). A comprehensive recitation of the facts and
history of this case can be found in the NAL and is incorporated herein by
reference.

^ See NAL, 25 FCC Rcd at 14598.

^ Letter from Mitchell P. Schecter, Counsel for Vicot Chery, to New York
Office, Northeast Region, Enforcement Bureau, at 1 (Jan. 7, 2011) (on file
in EB-09-NY-0318) (NAL Response).

^ We note that, in the NAL Response, counsel for Mr. Chery mistakenly
refers to events taking place in a "house." The unlicensed station at
issue here, however, was located in Mr. Chery's place of business - P.C.
Taxi and P.C. Auto Repair.

^ Id.

^ 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).

^ 47 U.S.C. S 301.

^ See NAL, 25 FCC Rcd at 14597. See also 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).

^ NAL, 25 FCC Rcd at 14597.

^ Id.

^ Id. See also 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).

^ NAL, 25 FCC Rcd at 14597.

^ Id. (citing Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418,
14420-21, para. 11 (Enf. Bur. 2005)).

^ 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 any rule, regulation or order issued by the
Commission thereunder shall be liable for a forfeiture penalty. 47 U.S.C.
S 503(b). 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, and defines the term "repeated" as the
"commission or omission of such act more than once or for more than one
day." 47 U.S.C. S 312(f)(1). The legislative history to Section 312(f)(1)
of the Act clarifies that the definitions of "willful" and "repeated"
apply to both Sections 312 and 503(b) of the Act, and the Commission has
so interpreted the terms in the Section 503(b) context. See H.R. Rep. No.
97-765, 97^th 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., Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).

^ NAL Response at 1.

^ 47 U.S.C. S 303(n) (emphasis added). FCC agents are not required to
obtain a warrant prior to conducting a radio station inspection. See
Norfolk Southern Railway Company, Memorandum Opinion and Order, 11 FCC Rcd
519 (CIB 1996) ("The right to inspect a station is one of the cornerstones
of the FCC's ability to ensure compliance with the Communications Act and
the FCC regulations."). See also Randall R. Gaines, Revocation Order, 72
FCC 2d 871, 878, para. 13 (Rev. Board 1979) (search warrant is not
required for an inspection of a CB radio station).

^ There is only a constitutional right to have counsel present during
questioning that occurs during a custodial interrogation. "Custodial
interrogation" is defined as "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way." Miranda v. Arizona,
384 U.S. 436, 444 (1966). See also [2]Williams v. U.S. Dept. of
Transportation, 781 F.2d 1573, 1578 n. 6 (11th Cir.1986) (Miranda warnings
not required in non-custodial setting of administrative investigation);
Bass v. Perrin, 170 F.3d 1312, 1320 (11^th Cir. 1999) (plaintiff in a
civil case has no constitutional right to counsel).

^ Notice of Unlicensed Operation to Vicot Chery (Nov. 4, 2009).

^ See Letter from Mitchell P. Schecter, Counsel for Vicot Chery, to New
York Office, Northeast Region, Enforcement Bureau, dated November 12,
2009; see also Letter from Mitchell P. Schecter, Counsel for Vicot Chery,
to New York Office, Northeast Region, Enforcement Bureau (June 24, 2010)
(on file in EB-09-NY-0318).

^ NAL, 25 FCC Rcd at 14599, para. 13.

^ Staff contacted counsel for Mr. Chery via telephone on January 5, 2011.

^ See, e.g., San Jose Navigation, Inc., Forfeiture Order, 22 FCC Rcd 1040,
1043 (2007) (in assessing an inability to pay claim, the Commission
requires the claimant to provide reliable and objective documentation that
reflects its current overall financial status).

^ 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.

(...continued from previous page)

(continued....)

Federal Communications Commission DA 13-2260

References

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