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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
James N. Dispoto ) File No. EB-98-TP-167
Ocala, Florida ) NAL/Acct. No. 915TP0003
MEMORANDUM OPINION AND ORDER
Adopted: April 6, 2000 Released: April 7, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
affirm a monetary forfeiture in the amount of two thousand
dollars ($2,000) against James N. Dispoto for willfully violating
Section 301 of the Communications Act of 1934 (``Act''), as
amended.1 The noted violation was based on James N. Dispoto's
operation of an FM radio station without a Commission license in
Ocala, Florida.
2. On December 10, 1998, the Commission's Tampa, Florida
Field Office (``Field Office''), issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of two thousand
dollars ($2,000) to James N. Dispoto.2 He did not file a timely
response to the NAL.3 On February 22, 1999, the former
Compliance and Information Bureau issued a Forfeiture Order
affirming the monetary forfeiture.4 On March 10, 1999, James N.
Dispoto filed a response to the Forfeiture Order. We will treat
this March 10, 1999 response as a petition for reconsideration of
the Forfeiture Order pursuant to Section 1.106 of the
Commission's Rules (``Rules'').5
II. BACKGROUND
3. On February 4, 1998, the Field Office received a
complaint that James N. Dispoto was operating an unlicensed radio
station from 4360 S.E. 60th Street, Ocala, Florida (``4360 S.E.
60th Street''). Agents from the Field Office visited 4360 S.E.
60th Street on March 3, 1998, at which time they met with James
N. Dispoto and his mother, Elaine Dispoto. The agents saw a
ground plane antenna mounted on a 50 foot tower behind 4360 S.E.
60th Street, where the Dispotos resided. The radio station was
not operating at that time. Although the Dispotos did not deny
that they operated a radio station on 96.3 MHz from 4360 S.E.
60th Street, they did not permit the agents to inspect the radio
station. The agents told the Dispotos about the Commission's
licensing requirements, and warned them of the penalties
associated with unlicensed broadcasting.
4. On March 9, 1998, the Field Office sent a letter via
certified mail, return receipt requested, and first class mail to
Elaine Dispoto that memorialized the agents' warning to her on
March 3, 1998. James N. Dispoto responded to the Field Office's
March 9, 1998 letter in a letter dated April 2, 1998, in which he
claims, among other things, that ``at no time have I been
broadcasting any programming out of my house that could be in
violation of the FCC['s] laws and regulations.'' He admits,
however, that ``a few months ago I tried to run some test[s] on
the dial to see if there was a possibility of [operating] a
small low power station. . . .'' According to him, his test
signals did not travel beyond three blocks.
5. On May 1, 1998, the Field Office received another
complaint that James N. Dispoto was operating an unlicensed radio
from 4360 S.E. 60th Street, and that the radio station's signal
could be heard approximately five to 10 miles away. On June 2,
1998, agents visited the Dispoto residence at 4360 S.E. 60th
Street. This time, the radio station was operating. The agents
determined that the signal's field strength exceeded the
permitted level for a low power transmitter.6 The agents
identified themselves to the Dispotos, James Dispoto, Jr. (James
N. Dispoto's father), Elaine Dispoto, and James N. Dispoto. The
Dispotos did not permit the agents to inspect the radio station.
This time the agents gave James N. Dispoto a written warning
pertaining to the unlicensed radio station, which he signed for
noting receipt. The warning indicated that James N. Dispoto
faced, among other things, a monetary penalty of up to $11,000.
6. On June 11, 1998, the Field Office issued a NAL to
James, Jr. and Elaine Dispoto for a violation of Section 301 of
the Act as a result of the operation of the unlicensed radio
station from 4360 S.E. 60th Street.7 James, Jr. and Elaine
Dispoto responded to the NAL on July 23, 1998, stating that their
adult son, James N. Dispoto, operated the radio station. The
Field Office subsequently canceled the NAL issued to James, Jr.
and Elaine Dispoto on December 9, 1998.8 On December 10, 1998,
as noted above, the Field Office issued the subject NAL to James
N. Dispoto for willful violation of Section 301 of the Act as a
result of his unlicensed operation of the FM radio station on
96.3 MHz from 4360 S.E. 60th Street. The NAL was followed by the
former Compliance and Information Bureau's Forfeiture Order
released on February 22, 1999, which affirmed the forfeiture
issued to James N. Dispoto.
7. James N. Dispoto's March 10, 1999 petition for
reconsideration of the Forfeiture Order states that he is unable
to pay the forfeiture because he is indigent with no income. In
support thereof, he states that he has not worked, does not drive
or own a car, and has not filed an income tax return. He states
further that he has not broadcast on 96.3 MHz (or any other
channel) since the June 2, 1998 visit by the Field Office agents,
and that he does not intend to ever broadcast again until low
power licenses are available.
8. On January 10, 2000, the Field Office sent James N.
Dispoto a letter requesting that he supplement the information
provided in his March 10, 1999 petition for reconsideration
regarding his financial status. In his response, filed January
18, 2000, James N. Dispoto avers that he is not employed and has
no income or assets and is not filing a 1999 tax return.
9. Subsequent investigatory efforts by Commission agents
on January 18 and 28, 2000, resulted in the discovery of
information that James N. Dispoto operates an internet website
(www.megamix96.com). As of January 28, 2000, he displayed
advertisements on his website, offered tee-shirts for sale, and
detailed his work experience under the name ``DJ New York.''
During a telephone conversation with Commission staff, James N.
Dispoto stated that his full-time occupation is operating his
internet radio station, which, according to him, just breaks
even.
III. DISCUSSION
10. The forfeiture was issued pursuant to Section 503 of
the Act,9 and Section 1.80 of the Rules.10 In assessing the
forfeiture amount, the Bureau followed the forfeiture standards
established in Section 503 of the Act and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate Guidelines, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy Statement'').
Section 503(b) 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. 11
11. James N. Dispoto admits that he operated an unlicensed
FM broadcast station without a license. However, he claims that
he cannot pay the $2,000 forfeiture because he has no income or
assets. His claims are inconsistent with the information found on
his website and the statements that he made to Commission agents
in January 2000. James N. Dispoto's statement that his full-time
occupation is operating his internet radio station in conjunction
with his work experience detailed on the website undermine the
financial claims in his petition for reconsideration. Without
the financial information associated with his self-professed
occupation, we are unable to verify the inability to pay claim
raised in his petition for reconsideration.
12. With respect to James N. Dispoto's claim that he ceased
operating his unlicensed radio station on June 2, 1998, we note
that remedial action to correct a violation, although
commendable, will not nullify a forfeiture penalty. See Station
KGVL, Inc., 42 FCC 2d 258, 259 (1993). Therefore, after
reviewing the record and considering the statutory factors, along
with those contained in Forfeiture Policy Statement, we conclude
that James N. Dispoto has failed to provide sufficient
justification for canceling or reducing the $2,000 forfeiture in
this case.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
1.106 of the Rules, James N. Dispoto's petition for
reconsideration of the Forfeiture Order, NAL/Acct. No. 915TP0003
IS DENIED.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules, within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.12
Payment may be made by credit card through the Commission's
Credit and Debt Management Center at (202) 418-1995, or by
mailing a check or similar instrument, payable to the order of
the ``Federal Communications Commission,'' to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note NAL/Acct. No. 915TP0003
referenced above. Requests for full payment under an installment
plan should be sent to: Chief, Credit and Debt Management Center,
445 12th Street, S.W., Washington, D.C. 20554.13
15. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to James N.
Dispoto, 4360 S.E. 60th Street, Ocala, Florida.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
915TP0003, Case # 98TP167 (Compl. & Inf. Bur., Tampa Office, rel.
Dec. 10, 1998).
3 James N. Dispoto filed an untimely response with the Commission
on February 1, 1999, but the former Compliance and Information
Bureau did not receive the response until after release of its
February 22, 1999 Forfeiture Order. See note 4, infra. The
financial issue that Mr. Dispoto raises in his February 1, 1999
response is similar to the one he raises in the March 10, 1999
response that we are treating as a Petition for Reconsideration.
4 14 FCC Rcd 3347 (Compl. & Inf. Bur. 1999).
5 47 C.F.R. § 1.106.
6 See 47 C.F.R. § 15.239.
7 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
815TP0005, Case # 98TP167 (Compl. & Inf. Bur., Tampa Office, rel.
June 11, 1998).
8 Forfeiture Order, NAL/Acct. No. 815TP0005, Case No. 98TP167
(Compl. & Inf. Bur., Tampa Office, rel. Dec. 9, 1998).
9 47 U.S.C. § 503.
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 503(b)(2)(D).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.