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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Gary M. Feldman Miami, Florida ) ) ) ) ) ) File No.:
EB-FIELDSCR-12-00002250 NAL/Acct. No.: 201332600002 FRN: 0010018281
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 21, 2013 Released: February 21, 2013
By the Resident Agent, Miami Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Gary M. Feldman apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended (Act),^ by
operating unlicensed radio transmitters on the frequency 97.7 MHz in
Miami, Florida. We conclude that Mr. Feldman is apparently liable for
a forfeiture in the amount of twenty five thousand dollars ($25,000).
2. On July 11, 2011, and May 9, 2012, agents from the Enforcement
Bureau's Miami Office (Miami Office), in response to a complaint, used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 97.7 MHz to an FM transmitting antenna
mounted on Mr. Feldman's residence in Miami, Florida. The agents
determined that the signals on 97.7 MHz exceeded the limits for
operation under Part 15 of the Commission's rules (Rules),^ and
therefore required a license. The Commission's records showed that no
authorization was issued to Mr. Feldman or to anyone else for
operation of an FM broadcast station at or near this address. While
monitoring the station on May 9, 2012, agents heard the station
broadcast the name of the website, "hot977fmmiami.com." Agents from
the Miami Office confirmed that it was Mr. Feldman who registered the
domain name for the unlicensed station's website.^
3. On May 16, 2012, agents from the Miami Office inspected the unlicensed
radio station located at Mr. Feldman's residence. During the
inspection, Mr. Feldman admitted to the agents that he was the only
operator of the unlicensed radio station operating on the frequency
97.7 MHz. Mr. Feldman did not relinquish or destroy his radio station
equipment. The agents warned Mr. Feldman that his actions violated the
Act and the Rules and that he could face additional enforcement action
for future unlicensed operations.
4. The following month, the agents from the Miami Office determined that,
although Mr. Feldman may have ceased operating the unlicensed station
from his Miami residence,^ he resumed his unlicensed operation from a
commercial building in the same city. On June 13, 2012, agents from
the Miami Office used direction-finding techniques to locate the
source of radio frequency transmissions on the frequency 97.7 MHz to
an FM transmitting antenna mounted to a commercial building in Miami,
Florida. While monitoring the station on June 13, 2012, agents heard
the station broadcast the name of its website, "hot977fmmiami.com."
The agents determined that the signals on 97.7 MHz exceeded the limits
for operation under Part 15 of the Rules,^ and therefore required a
license. The Commission's records still showed that no authorization
was issued to Mr. Feldman or to anyone else for operation of an FM
broadcast station at or near this address. The agents also later
determined that Mr. Feldman previously was found in violation of
Section 301 of the Act for operating an unlicensed radio station in
Tampa, Florida, and was issued a $10,000 forfeiture, which remains
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
A. Unlicensed Broadcast Operations
6. The evidence in this case establishes that Mr. Feldman 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 the record shows, on July 11, 2011, and
May 9, 2012, agents from the Miami Office determined that an
unlicensed radio station on the frequency 97.7 MHz was operating from
Mr. Feldman's residence in Miami, Florida. On May 16, 2012, the
agent's visited Mr. Feldman's residence to inspect the radio
transmitting equipment. At that time, Mr. Feldman admitted to the
agents that he operated, and was the sole operator of, the unlicensed
radio station, thereby confirming the violation. Thereafter, the
agents warned him about the violation and instructed him to
immediately cease the unlicensed operation.
7. Despite instructions to cease the unlicensed operation, the record
shows that Mr. Feldman attempted to evade future detection by moving
to a different location to resume the unlicensed operation. On June
13, 2012, the agents determined that the unlicensed radio station was
operating on the same frequency, but that it was now operating from a
different location--at a commercial building in Miami. The agents also
confirmed, on the same date, that Mr. Feldman apparently had removed
the FM transmitting antenna from his residence. Given Mr. Feldman's
prior statement (on May 16, 2012) that he was the sole operator of the
unlicensed station, we believe that he was the individual operating
the unlicensed station at the commercial building.^ In addition, the
evidence shows that, on both May 9 and June 13, 2012, the agents heard
the unlicensed radio station on 97.7 MHz reference the same website
for the station, "hot977fmmiami.com"; and that this domain name was
registered by Mr. Feldman. Furthermore, a review of the Commission's
records revealed that Mr. Feldman did not have a license to operate a
radio station on the frequency 97.7 MHz at either of the
aforementioned Miami locations (or any other location for that
matter). Because Mr. Feldman consciously operated the station and did
so on more than one day, the apparent violations of the Act were both
willful and repeated. Based on the evidence before us, we find that
Mr. Feldman apparently willfully and repeatedly 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 in this case
justifies a $15,000 upward adjustment from the base forfeiture amount.
As the record reflects, the Enforcement Bureau's Tampa Office issued
Mr. Feldman a Notice of Apparent Liability for Forfeiture for $10,000
in February 2004 for operating an unlicensed radio station in Fort
Myers, Florida, which eventually resulted in a collections action
initiated by the U.S. Department of Justice for nonpayment (and the
forfeiture remains unpaid).^ The fact that Mr. Feldman would again
engage in unlicensed operations after being the subject of an
enforcement action; continue to defy a court order requiring him to
satisfy payment to the federal government; and then attempt to evade
detection from FCC agents by moving his radio station from his
residence to a commercial building after being reminded that his
unlicensed operation contravened the Act, the Rules, and related
Commission Orders, demonstrate not only the egregiousness of the
violation, but also his deliberate disregard for the law. Based on the
evidence before us, we find that an upward adjustment of $15,000 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. Feldman is apparently liable for a forfeiture in the amount
of $25,000.^ We also caution Mr. Feldman that future violations may
subject him to more severe enforcement action, including larger
monetary forfeitures, criminal prosecution, and the in rem seizure of
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, Gary M. Feldman is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty five thousand dollars ($25,000) 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, Gary M.
Feldman SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Gary M. Feldman will also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
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. 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. Gary M.
Feldman also shall e-mail the written response SCR-Response@fcc.gov.
14. 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
15. 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 Gary M. Feldman 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.
^ See www.networksolutions.com/whois-search/hot977fmmiami.com (last
visited May 9, 2012). The contact name listed with Network Solutions was
"Gary Feldmann." Although the last name reflects two n's, we suspect that
it is either a typographical error or a deliberate attempt to inject
confusion and potentially evade future detection.
^ The agents observed on June 13, 2012, that the FM transmitting antenna
had been removed from Mr. Feldman's residence in Miami, Florida.
^ See supra note 2.
^ See infra note 17.
^ 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.
^ Even if Mr. Feldman denies operating the station, we believe that he
otherwise had control over the general conduct or management of the
station. For 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." 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).
^ 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).
^ Gary M. Feldman, Notice of Apparent Liability for Forfeiture, NAL/Acct
No. 200432700008 (Enf. Bur. rel. Feb. 4, 2004) (finding that Mr. Feldman
violated Section 301 by operating an unlicensed radio station on the
frequency 91.9 MHz in Fort Myers, Florida on March 5, 2003), aff'd,
Forfeiture Order, 19 FCC Rcd 7185 (Enf. Bur. 2004) (affirming $10,000
forfeiture and noting that Mr. Feldman had not paid the forfeiture nor
filed a response). Because Mr. Feldman failed to pay the $10.000
forfeiture resulting from the 2003 violation, the matter was referred to
the U.S. Department of Justice for collections. The Justice Department
filed collections action against Mr. Feldman in the U.S. District Court
for the Southern District of Florida in 2005, and court records reflect
that Mr. Feldman failed to respond to the Complaint, resulting in the
entry of a default judgment against him. See United States v. Feldman,
Case No. 05-21061-CIV-KING (S.D. FL Aug. 10, 2005). To date, Mr. Feldman
has not paid the judgment.
^ See Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 27
FCC Rcd 489 (Enf. Bur. 2012) (proposing $25,000 forfeiture for repeat
unlicensed operations, in violation of Section 301 of the Act, and after
issuance of forfeiture order for multiple violations of the same), aff'd,
Forfeiture Order, DA 13-175, 2013 WL 485239 (Enf. Bur. rel. Feb. 8, 2013).
^ We note that the proposed forfeiture relates to Mr. Feldman's apparent
violations that occurred only within the past year.
^ See 47 U.S.C. SS 401, 501, 503, 510. Accord Michael William Downer,
Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 7962, 7965, para.
8 (Enf. Bur. 2012). We note that the seriousness of the repeat violations
in this case already justify potential referral of this matter to state
and other federal authorities for additional enforcement action.
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80.
^ 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.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
Federal Communications Commission DA 13-244
Federal Communications Commission DA 13-244