*Pages 1--4 from Microsoft Word - 30452* Federal Communications Commission Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) File No. EB- 02- NY- 231 ) Rawlins Charles ) NAL/ Acct. No. 200332380010 ) Brooklyn, NY ) FRN: 0007- 9944- 86 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: January 8, 2003 By the District Director, New York Office, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (" NAL"), we find that Rawlins Charles has apparently violated Section 301 of the Communications Act of 1934 (“ Act”) 1 , as amended, by operating an unlicensed radio transmitter on the frequency 96.7 MHz. We conclude that Rawlins Charles is apparently liable for a forfeiture in the amount of ten thousand dollars ($ 10,000). II. BACKGROUND 2. On September 27, 2002, the FCC New York Office received a complaint about illegal broadcast stations operating in the New York City area. 3. On October 5, 2002, Commission agents, using a mobile direction- finding vehicle, monitored the frequency 96.7 MHz in Brooklyn, NY. The agents observed unauthorized radio broadcast on 96.7 MHz, and identified the source of the unauthorized transmissions to 95 Linden Blvd., Brooklyn, NY 11226. There was no evidence of a Commission authorization for this operation in Brooklyn, NY. 4. On October 8, 2002, Commission agents, using a mobile direction- finding vehicle, monitored the frequency 96.7 MHz in Brooklyn, NY. The agents again observed unauthorized radio broadcast on 96.7 MHz, and identified the source of the unauthorized transmissions to 95 Linden Blvd., Brooklyn, NY 11226. 5. On October 12, 2002, Commission agents, using a mobile direction- finding vehicle, monitored the frequency 96.7 MHz in Brooklyn, NY. The agents again observed unauthorized radio broadcast on 96.7 MHz, and identified the source of the unauthorized transmissions to 95 Linden Blvd., 1 47 U. S. C. § 301. 1 Federal Communications Commission 2 Brooklyn, NY 11226. The agents observed an antenna on the roof the building, and an antenna coaxial cable that ran into a window of Apartment 51C. While in the building, the agents spoke with Rawlins Charles, who admitted to operating the station from apartment 51C, 95 Linden Blvd. The agents then conducted an inspection of the station with Rawlins Charles, and observed broadcasting equipment, including a Veronica 30- watt FM transmitter, which he used for broadcasting from the apartment. 6. On October 16, 2002, the New York Office sent a Warning Letter, by First Class and Certified Mail Return Receipt Requested, to Rawlins Charles for unlicensed operation on the frequency 96.7 MHz. 7. On October 28, 2002, the New York Office received a reply from Rawlins Charles, stating that he had operated an unlicensed radio station from his apartment because he is a DJ and he just wanted to play music. III. DISCUSSION 8. Section 301 of the Act sets forth generally 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. 9. Based on the evidence before us, we find that Rawlins Charles was responsible for the operation of radio transmission equipment on 96.7 MHz on October 5, October 8, and October 12, 2002, without a Commission authorization in willful 2 and repeated 3 violation of Section 301 of the Act. A review of Commission’s records showed that there was no evidence of a Commission authorization to operate this station on the frequency, 96. 7 MHz, in Brooklyn, NY. 10. The Commission’s Forfeiture Policy Statement and Amendment of Section 1. 80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303( 1999) (“ Forfeiture Policy Statement”) 4 , sets the base forfeiture amount for operation without an instrument of authorization at $10,000. In assessing the monetary forfeiture amount, we must take into account the statutory factors set forth in Section 503( b)( 2)( D) of the Act, 5 which include the nature, circumstances, extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as justice may require. Applying the Forfeiture Policy Statement and the statutory factors to the instant case and applying the inflation adjustments, we believe that a ten thousand dollar ($ 10,000) monetary forfeiture is warranted. 2 Section 312( f)( 1) of the Act, 47 U. S. C. 312( f)( 1), which applies to Section 503( b) of the Act, provides that “[ t] he term ‘willful’, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act ….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 3 Section 312( f)( 2), which also applies to Section 503( b), provides: [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. 4 47 C. F. R. § 1.80. 5 47 U. S. C. § 503( b)( 2)( D). 2 Federal Communications Commission 3 IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Act 6 and Sections 0.111, 0.311 and 1.80 of the Commission’s Rules 7 , Rawlins Charles is hereby NOTIFIED of his APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($ 10,000) for willfully violating Section 301 of the Act. 12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission's Rules, within thirty days of the release date of this NOTICE OF APPARENT LIABILITY, Rawlins Charles SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 13. Payment of the forfeiture may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should note the NAL/ Acct. No. 200332380010 and FRN: 0007- 9944- 86. 14. Any response to this NAL must be mailed to Federal Communications Commission, Enforcement Bureau, Technical and Public Safety Division, 445 12th Street, S. W., Washington, D. C. 20554 and MUST INCLUDE THE NAL/ Acct. No. 200332380010. 15. 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. 16. Requests for payment of the full amount of this Notice of Apparent Liability under an installment plan should be sent to: Chief, Revenue and Receivable Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 8 17. Under the Small Business Paperwork Relief Act of 2002, Pub L. No. 107- 198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two- year tracking process regarding the size of entities involved in forfeitures. If you qualify as a small entity and if you wish to be treated as a small entity for tracking purposes, please so certify to us within thirty (30) days of this NAL, either in your response to the NAL or in a separate filing to be sent to the Technical and Public Safety Division. Your certification should indicate whether you, including your parent entity and its subsidiaries, meet one of the definitions set forth in the list provided by the FCC’s Office of Communications Business Opportunities (OCBO) set forth in Attachment A of this Notice of Apparent Liability. This information will be used for tracking purposes only. Your response or failure to 6 47 U. S. C. § 503( b). 7 47 C. F. R. §§ 0. 111, and 0.311. 8 See 47 C. F. R. § 1.1914. 3 Federal Communications Commission 4 respond to this question will have no effect on your rights and responsibilities pursuant to Section 503( b) of the Communications Act. If you have questions regarding any of the information contained in Attachment A, please contact OCBO at (202) 418- 0990. 18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail Return Receipt Requested to Rawlins Charles, 95 Linden Blvd., Apt. 51C, Brooklyn, NY 11226. FEDERAL COMMUNICATIONS COMMISSION Daniel W. Noel District Director New York Office Attachment A- FCC List of Small Entities, October 2002 4