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Burt Byng

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Released: August 22, 2012

Federal Communications Commission

DA 12-1371

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Burt Byng
)
File No.: EB-FIELDSCR-12-00000831
)
NAL/Acct. No.: 201232600016
Miami, Florida
)
FRN: 0021991153
)

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: August 21, 2012
Released: August 22, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture (NAL), we find that Burt Byng
apparently willfully violated Section 301 of the Communications Act of 1934, as amended (Act),1 by
operating an unlicensed radio transmitter on the frequency 107.1 MHz in Miami, Florida. We conclude that
Mr. Byng is apparently liable for a forfeiture in the amount of ten thousand dollars ($10,000).

II.

BACKGROUND

2.
On February 9, 2012, agents from the Enforcement Bureau’s Miami Office (Miami Office)
used direction-finding techniques to locate the source of radio frequency transmissions on the frequency
107.1 MHz to an FM transmitting antenna mounted on the roof of a commercial property in Miami, Florida.
The agents determined that the signals on 107.1 MHz exceeded the limits for operation under Part 15 of the
Commission’s rules (Rules),2 and therefore required a license. While monitoring the station, the agents also
heard the station identify itself on the air as “WEROC Radio.” Commission records showed that no
authorization was issued to Mr. Byng or to anyone else for operation of an FM broadcast station at or near
this address.
3.
On the same date, agents from the Miami Office, accompanied by the property owner,
inspected the unlicensed station’s antenna and transmitter located on the rooftop of the commercial building.
According to the “Move In Sheet” provided by the property owner, a company called J & B Enterprise US,
Inc. was the tenant of the particular area on the rooftop where the transmitting equipment was located.
The property owner also provided a copy of Mr. Byng’s driver’s license and identified Mr. Byng as the
individual who rented the rooftop space. According to Florida records, Mr. Byng is the President of an
inactive business named “J & B Enterprises US, Inc.”3 The agents also discovered that Mr. Byng registered


1 47 U.S.C. § 301.
2 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
μV/m at three meters. 47 C.F.R. § 15.239.
3 Florida Department of State, Division of Corporations, www.sunbiz.org (last visited Feb. 22, 2012).

Federal Communications Commission

DA 12-1371

the domain name, www.werocradio.com, a webpage for “W-E-R-O-C Radio.”4 The agents also noticed that
the phone number listed in the www.werocradio.com domain registration was the same phone number listed
on the aforementioned “Move In Sheet” provided by the property owner.

III.

DISCUSSION

4.
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.5 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.6
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,7 and the Commission has so interpreted the term in the Section 503(b)
context.8 The Commission may also assess a forfeiture for violations that are merely repeated, and not
willful.9 The term “repeated” means the commission or omission of such act more than once or for more
than one day.10

A.

Unlicensed Broadcast Operation

5.
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.11 For the 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.”12 In other words, the use of the word


4 See www.networksolutions.com/whois-search/werocradio.com (last visited Feb. 28, 2012).
5 47 U.S.C. § 503(b).
6 47 U.S.C. § 312(f)(1).
7 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 . . . .”).
8 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
9 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).
10 Section 312(f)(2) of the Act, 47 U.S.C. § 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 1362,
para. 9.
11 47 U.S.C. § 301.
12 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
(continued....)
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Federal Communications Commission

DA 12-1371

“operate” in Section 301 captures not just the “actual, mechanical manipulation of radio apparatus,”13 but
also operation of a radio station generally.14 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.”15
6.
We find that the record evidence in this case is sufficient to establish that Mr. Byng violated
Section 301 of the Act. On February 9, 2012, agents from the Miami Office determined that an unlicensed
radio station on the frequency 107.1 MHz operated from the rooftop of a commercial building in Miami,
Florida. On this day, the agents heard the station engaged in live broadcasts and identify itself as “WEROC
Radio.” A review of the Commission’s records revealed that no license or authorization was issued to
anyone to operate a radio station on 107.1 MHz at this location. Under Section 301, Mr. Byng can be said
to have “operated” the unlicensed radio station on 107.1 MHz because the evidence shows that Mr. Byng
exercised control over the general conduct or management of the station. According to the commercial
building owner, Mr. Byng, on behalf of an entity for which he served as President, leased the space on the
rooftop that housed the station, and the rented space appeared to the agents to be used primarily for the
purpose of operating the unlicensed station. In addition, Mr. Byng registered the domain name for the
www.werocradio.com website. The foregoing facts indicate that Mr. Byng consciously operated and/or
otherwise was involved in the general conduct or management of the unauthorized station. We therefore
conclude, based on the evidence before us, that Mr. Byng apparently willfully violated Section 301 of the
Act by operating radio transmission equipment without the required Commission authorization.

B.

Proposed Forfeiture Amount

7.
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 $10,000.16 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.17 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Mr. Byng is apparently liable for a forfeiture in
the amount of $10,000.


(...continued from previous page)
of the Act means both the technical operation of the station as well as the general conduct or management of the
station).
13 Id.
14 Id. See also 47 U.S.C § 307(c)(1).
15 See 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).
16 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. § 1.80.
17 47 U.S.C. § 503(b)(2)(E).
3

Federal Communications Commission

DA 12-1371

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 of the Commission’s rules, Burt
Byng is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A FORFEITURE

in the amount of
ten thousand dollars ($10,000) for violation of Section 301 of the Act.18
9.

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, Burt
Byng

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written statement seeking
reduction or cancellation of the proposed forfeiture.
10.
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. Burt Byng 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.19 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:
Ÿ
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.
Ÿ
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.
Ÿ
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.
11.
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. 20554.20 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.
12.
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


18 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80.
19 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
20 See 47 C.F.R. § 1.1914.
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Federal Communications Commission

DA 12-1371

to Sections 1.16 and 1.80(f)(3) of the Rules.21 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. Burt Byng also shall e-mail the
written response to SCR-Response@fcc.gov.
13.
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.
14.

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 Burt Byng
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South Central Region
Enforcement Bureau


21 47 C.F.R. §§ 1.16, 1.80(f)(3).
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