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Whisler Fleurinor

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Released: February 8, 2013

Federal Communications Commission

DA 13-175


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Whisler Fleurinor
)
File No.: EB-11-MA-0123
)
NAL/Acct. No.: 201232600006
Fort Lauderdale, Florida
)
FRN: 0020655106
)

FORFEITURE ORDER

Adopted:

February 8, 2013

Released:

February 8, 2013
By the Regional Director, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of twenty-
five thousand dollars ($25,000) to Whisler Fleurinor for willfully and repeatedly violating Section 301 of
the Communications Act of 1934, as amended (Act).1 The violations involved Mr. Fleurinor’s operation of
an unlicensed radio transmitter on the frequency 99.5 MHz in Fort Lauderdale, Florida.

II.

BACKGROUND

2.
The Enforcement Bureau’s records reflect that Mr. Fleurinor has been cited multiple times
for unlicensed operation of a radio broadcast station since 2008. The first instance was on January 14, 2008,
when the Bureau’s Miami Office issued a Notice of Unlicensed Operation (NOUO) to Mr. Fleurinor after it
was determined that he was operating a radio station on the frequency 97.7 MHz from a commercial
property in Fort Lauderdale, Florida.2 The NOUO warned Mr. Fleurinor that operation of an unlicensed
station violated the Act and the Commission’s rules and could result in further enforcement action.3 On
March 16 and August 24, 2010, agents from the Miami Office used direction-finding techniques to
determine that an unlicensed broadcast station operating on the frequency 99.5 MHz was located in a
commercial property in Fort Lauderdale, Florida, which according to Florida property records was owned
by Mr. Fleurinor.4 During the August 24, 2010 inspection of the unlicensed station, Mr. Fleurinor admitted


1 47 U.S.C. § 301.
2 See Whisler Fleurinor, Notice of Unlicensed Operation (Enf. Bur., Miami Office rel. Jan. 14, 2008) (First NOUO).
The Miami Office received a return receipt for the First NOUO signed by Mr. Fleurinor and a response to the First
NOUO
signed by Mr. Fleurinor’s attorney. See Letter from Rocco G. Marucci, P.A. to Stephanie Dabkowski,
Resident Agent, Miami Office (Jan. 22, 2008). In the response, Mr. Fleurinor’s attorney stated that “Mr. Fleurinor
had no intention of violating any federal or state laws with respect to any radio transmissions from his business. He
has advised that he will have the equipment checked to insure that it complies with the FCC levels and does not
violate any laws or regulations.”
3 Id.
4 Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 2478 (Enf. Bur. 2011) (First NAL).

Federal Communications Commission

DA 13-175

to owning the antenna and transmitter.5 After confirming the violation, Mr. Fleurinor was hand-delivered
another NOUO.6
3.
Despite receipt of the second NOUO, agents from the Miami Office confirmed on August
31, 2010 that transmissions on 99.5 MHz were still emanating from the antenna located on Mr. Fleurinor’s
commercial property.7 Consequently, on March 4, 2011, the Miami Office issued the first of two Notices of
Apparent Liability (NAL) to Mr. Fleurinor for operating an unlicensed radio station, in violation of Section
301 of the Act.8 The First NAL proposed a $20,000 forfeiture, which included an upward adjustment in
view of the record evidence that Mr. Fleurinor continued to operate the radio station despite receiving prior
notices of the violation.9 Mr. Fleurinor responded to the First NAL, acknowledging the violations, but
urging cancellation or reduction of the forfeiture based on an inability to pay claim.10 On October 20, 2011,
the South Central Region of the Enforcement Bureau issued a Forfeiture Order, affirming its findings in the
First NAL, but agreed to reduce the forfeiture amount to $500 based solely on Mr. Fleurinor’s inability to
pay claim.11 Thereafter, Mr. Fleurinor paid the $500 forfeiture.
4.
On August 10, November 3, and December 7, 2011, agents from the Miami Office used
direction-finding techniques to locate the source of radio frequency transmissions on the frequency 99.5
MHz, and again traced it to Mr. Fleurinor’s commercial property in Fort Lauderdale, Florida, the same
address which was identified in the First NAL.12 As a result, the Miami Office issued to Mr. Fleurinor a
second Notice of Apparent Liability for Forfeiture (Second NAL) on February 1, 2012, which proposed a
$25,000 forfeiture.13 The proposed forfeiture included a $15,000 upward adjustment because of the
deliberate nature of the violation, given that Mr. Fleurinor had already been fined and issued multiple
NOUOs for the same violation.14 Mr. Fleurinor submitted a response to the Second NAL, denying that he
violated the Act or any FCC order.15 More specifically, Mr. Fleurinor asserts that “there [has] been no
radio transmission of any kind for at least 6 months, [and that] there is no radio equipment at this
location.”16 Mr. Fleurinor also asserts that the “only remnant of any radio equipment is a roof antenna . . .


5 Id. at 2478, para 3.
6 Id. & n.3.
7 First NAL, 26 FCC Rcd at 2479.
8 See supra note 4.
9 Id.
10 See Letter from Lewis H. Goldman, P.C., attorney for Mr. Fleurinor, to Diane Law-Hsu, Regional Counsel, South
Central Region, Enforcement Bureau (Aug. 2, 2011) (on file in EB-10-MA-0048).
11 Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf. Bur. 2011) (forfeiture paid).
12 Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 489 (Enf. Bur. 2012) (Second NAL).
A comprehensive recitation of the facts and history of this case can be found in the Second NAL and is incorporated
herein by reference.
13 Id.
14 Id. at 491, para. 6.
15 See Letter from Rocco C. Marucci, P.A., Counsel for Whisler Fleurinor, to Stephanie Dabkowski, Resident Agent,
Miami Office at 1 (Mar. 30, 2012) (on file in EB-11-MA-0123) (Second NAL Response). Mr. Fleurinor requested
and obtained an extension in which to submit a response to the NAL.
16 Id. at 1.
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Federal Communications Commission

DA 13-175

which has been and continues to be unconnected and not operational.”17 Finally, Mr. Fleurinor states that
he is unable to pay the forfeiture in any event and, therefore, urges cancellation on that basis as well.18

III.

DISCUSSION

5.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,19 Section 1.80 of the Commission’s rules (Rules),20 and the Forfeiture Policy
Statement
.21 In examining Mr. Fleurinor’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.22 We have considered Mr. Fleurinor’s response to the NAL in light of
these statutory factors and find that neither cancellation nor reduction of the forfeiture is warranted for the
reasons discussed below.

A.

Unlicensed Broadcast Operations

6.
We affirm the NAL’s finding that Mr. Fleurinor violated Section 301 of the Act.23 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.24 As reflected in the NAL, agents from the
Miami Office determined that unlicensed radio transmissions on the frequency 99.5 MHz emanated from
the antenna located on top of Mr. Fleurinor’s commercial property on August 10, November 3, and
December 7, 2011. Mr. Fleurinor admits in his NAL Response that the antenna at issue was his, but
denies that he was operating the unlicensed station on the specified dates by asserting that any radio
transmission had already ceased “at least 6 months” ago and that the radio equipment has since been
“unconnected.”25
7.
We do not find Mr. Fleurinor’s assertions to be credible, given the more reliable record
evidence adduced by the Miami Office over a period of several months, and in view of Mr. Fleurinor’s
past history of repeated noncompliance despite promises to comply. The Bureau’s uncontroverted
evidence shows that the Miami agents, during each of the three dates of the investigation, observed no
other antennas in the general vicinity of Mr. Fleurinor’s antenna, rendering Mr. Fleurinor’s antenna as the
definitive source of the unlicensed radio transmissions. The transmissions were also operating on the
same frequency (i.e., 99.5 MHz) that Mr. Fleurinor previously conceded to using for his unlicensed radio
operations. The consistency of the results of the agents’ direction-finding techniques over three different
months make it highly unlikely that the agents erred in their determination as to the source of the
unlicensed radio transmissions. Further, Mr. Fleurinor has not submitted any objective evidence that
would raise questions about the accuracy of the agents’ findings or any evidence that could support his


17 Id.
18 Mr. Fleurinor also proposes to settle the proceeding with a payment of $500 and with no admission of guilt. The
Bureau respectfully declines his offer.
19 47 U.S.C. § 503(b).
20 47 C.F.R. § 1.80.
21 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).
22 47 U.S.C. § 503(b)(2)(E).
23 See NAL, supra note 12.
24 47 U.S.C. § 301.
25 Second NAL Response at 1.
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Federal Communications Commission

DA 13-175

assertions. Therefore, based on the evidence before us, we are convinced that Mr. Fleurinor willfully and
repeatedly violated Section 301 of the Act by operating radio transmission equipment (again) without the
required Commission authorization.

B.

Denial of Inability to Pay Claim

8.
We also deny Mr. Fleurinor’s request that we cancel the $25,000 proposed forfeiture
based on his inability to pay claim. As indicated above, Section 503(b)(2)(E) of the Act states that, in
determining the amount of a forfeiture penalty, the Commission will 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.26
We have reviewed Mr. Fleurinor’s financial documentation, which, under ordinary circumstances, and
standing alone, may arguably support a reduction of the forfeiture.27 We emphasize, however, that an
individual’s ability (or inability) to pay a forfeiture is just one of the factors we consider in determining the
appropriate forfeiture penalty for violations of the Act and the Rules.28 In this instance, we find that all the
aforementioned Section 503(b)(2)(E) factors militate against cancellation or reduction of the forfeiture
notwithstanding Mr. Fleurinor’s purported financial circumstances.
9.
The record evidence in this case shows that Mr. Fleurinor is a repeat offender, having
already received and paid a forfeiture for the very same violations at issue here; and has been in violation,
either continuously or intermittently since at least 2008. With respect to the more recent violations, there is
no question that Mr. Fleurinor was fully aware that his actions violated the Act. As such, his repeat
violations of the statute demonstrate a complete disregard for the Commission’s authority. Moreover, Mr.
Fleurinor’s further violations of the Act after being issued a Forfeiture Order (that substantially reduced a
$20,000 proposed forfeiture in the First NAL to $500 based solely on consideration of his inability to pay
claim) convinces us that the previous $500 forfeiture imposed (which he has paid) was not a sufficient
deterrent. There simply is nothing on the record in this case, including the documents that Mr. Fleurinor
submitted in support of his inability to pay claim, that warrants any leniency or mitigation of the proposed
forfeiture amount.29 Therefore, after consideration of the entire record and the factors listed above, we find
that a forfeiture in the amount of $25,000 is warranted.30 We also caution Mr. Fleurinor that future
violations of the same kind may result in more severe enforcement action, including but not limited to
higher monetary forfeitures, criminal prosecution, and the in rem seizure of his equipment.

IV.

ORDERING CLAUSES

10.
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


26 47 U.S.C. § 503(b)(2)(E).
27 Indeed, we have already substantially reduced the forfeiture proposed against Mr. Fleurinor in the First NAL from
$20,000 to $500 based on his inability to pay claim, yet he continued with his unlicensed radio operations. As we have
previously warned unlicensed radio operators found in violation of Section 301, future violations of the same kind may
result in significantly higher forfeitures which may not be reduced due to financial circumstances. See, e.g., Michael
W. Perry
, Forfeiture Order, 27 FCC Rcd 2281, 2284, para. 8 (2012) (fined for unlicensed radio operations).
28 See id. at 2283-84, para. 8.
29 See, e.g., Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that violator’s repeated
acts of malicious and intentional interference outweigh evidence concerning his ability to pay) (petition for
reconsideration pending); Hodson Broadcasting Corporation, Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009)
(permittee’s continued operation at variance with its construction permit constituted an intentional and continuous
violation, which outweighed permittee’s evidence concerning its ability to pay the proposed forfeitures).
30 If Mr. Fleurinor believes that paying this amount presents financial difficulties, we note that he could always
pursue an installment plan to lessen the immediate impact of the forfeiture.
4

Federal Communications Commission

DA 13-175

rules, Whisler Fleurinor

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of twenty-
five thousand dollars ($25,000) for violations of Section 301 of the Act.31
11.
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.32 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.33 Whisler Fleurinor shall send
electronic notification of payment to SCR-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.34 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.
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. 20554.35 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.


31 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4).
32 47 C.F.R. § 1.80.
33 47 U.S.C. § 504(a).
34 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
35 See 47 C.F.R. § 1.1914.
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DA 13-175

13.

IT IS FURTHER ORDERED

that a copy of this Forfeiture Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Whisler Fleurinor at his address of record and
to his attorney, Rocco G. Marucci, P.A., at 116 Southeast 6th Court, Fort Lauderdale, FL 33301.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
6

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